| People v Shuler |
| 2012 NY Slip Op 07232 [100 AD3d 1041] |
| November 1, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v RasheeShuler, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Brian Leeds of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Broome County (Cawley, J.),rendered February 1, 2011, upon a verdict convicting defendant of the crime of attemptedrobbery in the second degree (two counts).
During the evening of October 14, 2008, Charles Williams, Daquan Harrison, BriannaSheppard and Paul Barnett drove to the home of Mark Marcello, a marihuana dealer, intending torob him of marihuana. On the way, they stopped to pick up defendant, who had telephonedBarnett in search of both marihuana and a place to stay overnight. During the short drive toMarcello's house, defendant learned that Marcello had sold marihuana to defendant's 13-year-olddaughter. When they arrived, Marcello was smoking marihuana in the backyard with his friendWesley Sherwood. Defendant, Williams and Harrison walked behind the house, where defendantconfronted Marcello while Harrison began attacking him and Williams opened his shirt todisplay a pellet gun as a means of intimidating Sherwood. The police were called by an occupantof the house; Marcello and Sherwood were ultimately able to get inside the house and Williams,Harrison, Sheppard and Barnett fled. Defendant was arrested at the scene and was subsequentlyindicted for two counts of attempted robbery in the second degree. After a jury trial, defendantwas found guilty as charged and was sentenced, as a persistent violent felony offender, to aprison term of 12 years to life. Defendant now appeals and we affirm.[*2]
We begin with defendant's contention that the verdict wasagainst the weight of the evidence. In order to convict defendant of attempted robbery in thesecond degree based on the facts alleged in the first count of the indictment, the People wererequired to prove that, with the intent to forcibly steal property, defendant attempted to do so andwas aided by another person who was present (see Penal Law §§ 110.00,160.10 [1]). In order to convict defendant of such charge under the second count of theindictment, it was necessary for the People to prove that, in the course of the commission of thecrime, defendant or another participant displayed what appeared to be a firearm (seePenal Law §§ 110.00, 160.10 [2] [b]).
Defendant first argues that the weight of the credible evidence does not support a finding thathe was able to form the mental intent required for criminal responsibility due to his intoxicatedstate.[FN1]In that regard, several witnesses testified that, although defendant smelled of alcohol or wasunder the influence, he did not appear to be inebriated or seemed only "a little bit drunk." Inaddition, evidence that defendant had the presence of mind to, among other things, approach thepolice with his arms up—stating that he was unarmed—and that he was able toprovide the police with a coherent narrative provided ample support for the jury's finding thatdefendant's level of intoxication did not negate his intent to commit the charged crime (see People v Rolfe, 83 AD3d1217, 1217-1218 [2011], lv denied 17 NY3d 809 [2011]; People v Hazen, 20 AD3d 586,588-589 [2005], lv denied 5 NY3d 806 [2005]). To the extent that there wascontradictory testimony, the jury was free to assess the credibility of each witness (see Peoplev Negron, 91 NY2d 788, 792 [1998]).
Defendant's contention that his conviction under count 2 should be reversed because theevidence did not support a finding that he knew that Williams possessed and/or would displaywhat appeared to be a firearm is also unavailing, as such knowledge is unnecessary to establishdefendant's criminal responsibility (see People v Horsey, 304 AD2d 852, 854 [2003],lv denied 1 NY3d 573 [2003]; People v Gage, 259 AD2d 837, 838-839 [1999],lvs denied 93 NY2d 924, 970 [1999]). To the extent that defendant challenges any of theremaining elements of the crimes charged, we need only note that, even if an acquittal would nothave been unreasonable (see People vDozier, 94 AD3d 1226, 1227 [2012], lv denied 19 NY3d 996 [2012]; People v Johnson, 91 AD3d 1194,1196 [2012], lv denied 18 NY3d 995 [2012]), when we view all the evidence in a neutrallight, " 'weigh the relative probative force of conflicting testimony and the relative strength ofconflicting inferences that may be drawn from the testimony' " (People v Ingram, 95 AD3d 1376,1377 [2012], lv denied 19 NY3d 974 [2012], quoting People v Bleakley, 69NY2d 490, 495 [1987]) and accord proper deference to the jury's evaluation of the witnesses'credibility, there is ample evidence to support a finding that defendant, aided by Williams andHarrison, attempted to forcibly obtain marihuana and/or money from Marcello and, while doingso, Williams displayed what appeared to be a firearm. Thus, we find that the verdict was notagainst the weight of the evidence (seePeople v Danielson, 9 NY3d 342, 348 [2007]; People v Romero, 7 NY3d 633, 643-645 [2006]; People vIngram, 95 AD3d at 1377-1378).[*3]
We also reject defendant's unsupported claim that hisadjudication as a persistent violent felony offender was contrary to law because County Courtimproperly determined that certain alleged periods of incarceration tolled the 10-year limitationsperiod. Penal Law § 70.08 allows enhanced sentencing of any person convicted of aqualifying violent felony offense who has been convicted of two such prior offenses (seePenal Law §§ 70.02 [1]; 70.08 [1], [2], [3] [c]), provided that the sentences upon theprior convictions were "imposed not more than [10] years before commission of the felony ofwhich the defendant presently stands convicted" (Penal Law § 70.04 [1] [b] [iv]). The10-year period does not include any periods of incarceration "for any reason between the time ofcommission of the previous felon[ies] and the time of commission of the present felony" (PenalLaw § 70.04 [1] [b] [v]).
Here, the People filed a persistent violent felony offender statement setting forth two priorviolent felony convictions—a conviction of robbery in the second degree on June 18, 1993and a conviction of attempted robbery in the second degree on March 7, 1995. Inasmuch as thefirst violent felony conviction was 15 years and 119 days prior to defendant's commission of theinstant offense, in order to have defendant adjudicated a persistent violent felony offender, thePeople had the burden of proving that he was incarcerated for at least five years and 119 days soas to bring the lapse within 10 years (see Penal Law § 70.04 [1] [b] [v]). Upon ourreview of the record—including, but not limited to, the transcripts of two evidentiaryhearings—we find that the People demonstrated excludable periods of incarceration ofapproximately five years and 345 days, which was more than sufficient to sustain such burden.
Finally, we are unpersuaded by defendant's assertions that County Court committed one ormore mode of proceedings errors in its response to a note from the jury duringdeliberations.[FN2]County Court received a note from the jury stating, "One of the jurors thinks she knows one ofthe witnesses and she is not sure if this will effect her decision. We would like to keep decidingtomorrow." Upon receipt of this note, the court directed a court attendant to bring the subjectjuror into the courtroom, whereupon the juror was amply questioned by the court and counsel. Itwas not necessary for the court to actively supervise the court attendant while she "perform[ed][the] administerial duties" assigned of identifying the particular juror involved and escorting thatjuror to the courtroom (CPL 310.10 [1]; see People v Bonaparte, 78 NY2d 26, 30-31[1991]; compare People v Torres, 72 NY2d 1007, 1008-1009 [1988]; People vAhmed, 66 NY2d 307, 311-312 [1985]; People v Ciaccio, 47 NY2d 431, 436-437[1979]). Nor is there proof of any improper communication between the court attendant and thejuror. Accordingly, defendant is not entitled to reversal of his convictions on this ground (see People v Kelly, 5 NY3d 116,120 [2005]; People v White, 79AD3d 1460, 1463-1464 [2010], lvs denied 17 NY3d 803 [2011]). Moreover, underthe circumstances of this case, we are satisfied that defendant received "meaningful notice of theprecise contents of the jury's note and an advance opportunity to suggest appropriate responses"(People v Woodrow, 89 AD3d1158, 1159 [2011] [internal quotation marks and citations omitted], lv denied 19NY3d 978 [2012]) before County Court responded to the jury's inquiry.[*4]
We have examined defendant's remaining contentionsand find them to be lacking in merit.
Peters, P.J., Lahtinen, Kavanagh and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: We note that County Courtproperly instructed the jury, at defendant's request, that in order to relieve him of criminalresponsibility, his intoxication, if any, must have been "of such a degree, character and extent asto have deprived [defendant] of the ability to formulate in his own mind a conscious aim orobjective to engage in purposeful [proscribed] conduct" (see Penal Law § 15.25;CJI2d[NY] Defenses—Intoxication).
Footnote 2: Although defendant concedesthat any objection to the manner in which County Court addressed the jury's note was notpreserved for our review, defendant correctly argues that preservation is not required if a "modeof proceedings" error occurred (see People v Ahmed, 66 NY2d 307, 310 [1985]).Nonetheless, we conclude that no such error occurred.