| People v Powell |
| 2012 NY Slip Op 09262 [101 AD3d 1783] |
| December 28, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v MichaelA. Powell, Appellant. |
—[*1] Michael A. Powell, defendant-appellant pro se. Sandra Doorley, District Attorney, Rochester (Matthew Dunham of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John R. Schwartz, A.J.), rendered June 23,2008. The judgment convicted defendant, after a nonjury trial, of burglary in the third degree and petitlarceny.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a nonjury trial of burglary inthe third degree (Penal Law § 140.20) and petit larceny (§ 155.25). In his main and prose supplemental briefs, defendant contends that the evidence is not legally sufficient to support theconviction because, inter alia, the structure involved does not constitute a building within the meaning ofthe burglary statute. We reject that contention. " 'Building,' in addition to its ordinary meaning, includesany structure . . . used by persons for carrying on business therein" (§ 140.00 [2]).It is well settled that a garage is a building within the meaning of the statute (see e.g. People v Avilez, 56 AD3d1176, 1176-1177 [2008], lv denied 12 NY3d 755 [2009]; People v Horn, 302AD2d 975, 975 [2003], lv denied 100 NY2d 539 [2003]). Contrary to defendant's furthercontention, a structure under construction that has walls and a roof is a building within the meaning ofthe statute (see People v Angel, 178 AD2d 419, 419 [1991], lv denied 79 NY2d 852[1992]; see also People v Fox, 3 AD3d577, 578 [2004], lv denied 2 NY3d 739 [2004]; see generally People v Fennell,122 AD2d 69, 70-71 [1986], lv denied 68 NY2d 1000 [1986]), and "[t]he structure need not. . . be fully completed or occupied" (Fox, 3 AD3d at 578). We conclude that theevidence, viewed in the light most favorable to the prosecution (see People v Contes, 60NY2d 620, 621 [1983]), is legally sufficient to support the conviction (see generally People vBleakley, 69 NY2d 490, 495 [1987]). Furthermore, viewing the evidence in light of the elementsof the crimes in this nonjury trial (see Peoplev Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against the weightof the evidence (see generally Bleakley, 69 NY2d at 495).
With respect to defendant's contention in his main and pro se supplemental briefs that he wasdenied effective assistance of counsel, it is well settled that the "failure of defense counsel to facilitatedefendant's testimony before the grand jury does not, per se, amount to the denial of [*2]effective assistance of counsel" (People v Simmons, 10 NY3d 946, 949 [2008]; see People v Johnson, 94 AD3d 1563,1564 [2012], lv denied 19 NY3d 962 [2012]; People v Perez, 67 AD3d 1324, 1325 [2009], lv denied 13NY3d 941 [2010]). Viewing the evidence, the law and the circumstances of this case, in totality and asof the time of the representation, we reject defendant's contention that he was denied effectiveassistance of counsel (see generally People v Baldi, 54 NY2d 137, 147 [1981]).
Defendant failed to preserve for our review his contention in his main brief that the indictment mustbe dismissed because the stolen doors were improperly returned to the owner in violation of Penal Law§ 450.10 (see Matter of MatthewM.R., 37 AD3d 1135, 1135-1136 [2007]; People v Watkins, 239 AD2d 448[1997], lv denied 91 NY2d 837 [1997]). In any event, defendant seeks only dismissal of theindictment based on that alleged violation, and the statute provides that "[f]ailure to comply with anyone or more of the provisions of this section shall not for that reason alone be grounds for dismissal ofthe accusatory instrument" (§ 450.10 [10]). Defendant also failed to preserve for our review hiscontention in his main brief that the prosecutor violated his right to discovery under CPL 240.20"inasmuch as he did not object to the prosecutor's failure to disclose [photographs of the stolenproperty] when defendant was made aware of [their] existence during the trial" (People v Jones, 90 AD3d 1516, 1517[2011], lv denied 19 NY3d 864 [2012]; see People v Benton, 87 AD3d 1304, 1305 [2011], lv denied19 NY3d 862 [2012]; People vDelatorres, 34 AD3d 1343, 1344 [2006], lv denied 8 NY3d 921 [2007]). In anyevent, reversal based on any such violation would not be required because "defendant failed to establishthat he was 'substantially prejudice[d]' " by the prosecutor's failure to disclose such photographs(Delatorres, 34 AD3d at 1344).
Defendant further contends in his main brief that Monroe County Sheriff's Deputies stopped hisvehicle and placed him in custody without probable cause to believe that he had committed a crime andthus that County Court erred in refusing to suppress evidence seized following that allegedly unlawfularrest. We reject that contention. A homeowner called 911 at approximately 3:30 a.m. to report that aperson was removing property from a neighboring house that was under construction, and was placingthe property in a pickup truck. The emergency dispatcher broadcast that information and a descriptionof the truck, which had distinctive lights and a cap over the bed. A deputy found defendant in thedriver's seat of a pickup matching that description, which was stopped partly on the roadway at 3:45a.m., approximately one quarter of a mile from the location from which the property was taken. As thedeputy approached the driver's door, he noticed that there were two new house doors in the bed of thepickup, still in their original packing. After briefly questioning defendant, the deputy placed him in therear of a patrol vehicle and held him a brief time until the owner of the property responded to thatlocation and confirmed that the property was his. We conclude that the deputy "had reasonablesuspicion to stop and detain defendant 'based on the totality of the circumstances,' " including a radiotransmission providing a description of the vehicle operated by the perpetrator of the crime and thedeputy's observation of the vehicle operated by defendant, which matched that radio transmission,defendant's proximity to the location of the crime, the brief period of time between the crime and thediscovery of defendant near the location of the crime, and defendant's possession of the apparentlystolen property (People v Moss, 89AD3d 1526, 1527 [2011], lv denied 18 NY3d 885 [2012]).
We have considered defendant's remaining contentions, including those raised in his pro sesupplemental brief, and conclude that they are without merit. Present—Scudder, P.J., Smith,Fahey, Carni and Martoche, JJ.