| People v Beauvais |
| 2013 NY Slip Op 02290 [105 AD3d 1081] |
| April 4, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JonelBeauvais, Appellant. |
—[*1] Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Franklin County (MainJr., J.), rendered June 20, 2011, upon a verdict convicting defendant of the crimes ofburglary in the first degree, assault in the third degree and criminal mischief in the thirddegree.
This prosecution stems from an altercation that occurred between defendant, two ofher friends and the victim. On the evening of February 9, 2010, defendant and herfriends, Renee Oakes and Precious Boots, went out to dinner and eventually wound up ata house party. Early the next morning defendant, who considered herself to be toointoxicated to drive, climbed into the passenger seat of Precious Boots' vehicle and fellasleep. When defendant awoke, she noticed that the vehicle was parked in the drivewayof a residence and that Renee Oakes, who apparently had been driving, had exited thevehicle; Precious Boots then climbed into the driver's seat and the two started to leave.As defendant glanced back, she noticed Renee Oakes standing at the door of theresidence, where she was engaged in conversation with the victim. The victim was theformer paramour of Raymond Oakes, who is the father of Renee Oakes, Precious Bootsand Devon Oakes, the latter of whom was defendant's former boyfriend and the father ofher [*2]three children.[FN1]According to defendant, she was aware of the ongoing dispute between the victim andRaymond Oakes and, upon seeing Renee Oakes enter the residence, became concernedthat there would be trouble. At this point, defendant and Precious Boots returned to theresidence—purportedly to retrieve Renee Oakes. Shortly after entering theresidence, a physical altercation broke out between Renee Oakes and the victim, duringthe course of which the victim sustained various injuries and certain property wasdamaged. According to the victim, both Precious Boots and defendant also participatedin the fracas.
As a result, defendant was indicted and charged with burglary in the first degree,assault in the third degree and criminal mischief in the third degree. Following a jurytrial, defendant was found guilty as charged and thereafter was sentenced as a secondfelony offender[FN2]to concurrent terms of 10 years in prison plus five years of postrelease supervision on theburglary count, one year in jail on the assault count and 2 to 4 years in prison on thecriminal mischief count and was ordered to pay restitution. The aggregate sentenceimposed was to run consecutively to any other time owed to the Department ofCorrections and Community Supervision.[FN3]This appeal by defendant ensued.[FN4]
Initially, to the extent that defendant contends that the People failed to prove by apreponderance of the evidence (see People v McLaughlin, 80 NY2d 466, 472[1992]) that the [*3]underlying crimes occurred withinthe geographical jurisdiction of Franklin County, we note that "unlike territorialjurisdiction[,] which goes to the very essence of the State's power to prosecute,"questions regarding geographical jurisdiction or venue are waivable (People v Hinds, 77 AD3d429, 430 [2010], lv denied 15 NY3d 953 [2010] [internal quotation marksand citation omitted]). Accordingly, inasmuch as defendant failed to request a jurycharge on venue, she waived any challenge in this regard (see People v Brown, 90 AD3d1140, 1141 [2011], lv denied 18 NY3d 922 [2012]; People v Hinds,77 AD3d at 430-431).
Defendant next contends that her conviction of criminal mischief in the third degreeis not supported by legally sufficient evidence—an argument that defendantpreserved for our review by appropriate motions. As is relevant here, a person commitscriminal mischief in the third degree when, "with intent to damage property of anotherperson, and having no right to do so . . . , he or she . . .damages property of another person in an amount exceeding [$250]" (Penal Law §145.05 [2]). Damage to the subject property, in turn, typically is "established by evidenceof the reasonable cost of repairing the property" or, if the property cannot be repaired,"the replacement cost" thereof (People v Shannon, 57 AD3d 1016, 1016 [2008]).
Here, although the victim testified that her flat screen television was damaged, aswere her Dolce and Gabbana glasses, a framed picture and a pair of mukluks, the recordis devoid of any proof as to the reasonable cost of repairing and/or replacing this property(compare People v Hooks,71 AD3d 1184, 1185-1186 [2010]; People v Brown, 57 AD3d 238, 238 [2008], lvdenied 12 NY3d 781 [2009]; People v Katovich, 238 AD2d 751, 752[1997]), and neither the victim's conclusory and unsubstantiated testimony regarding thevalue of the items in question nor the photographic evidence contained in the record issufficient to establish that the damage to the victim's property exceeded $250. The recordis, however, sufficient to establish that defendant intentionally damaged the victim'sproperty and, therefore, defendant's conviction on this count is reduced to criminalmischief in the fourth degree (see Penal Law § 145.00 [1]; People vCivitello, 287 AD2d 784, 786-787 [2001], lv denied 97 NY2d 703 [2002];see also CPL 470.15 [2] [a]; 470.20 [4]).
As for defendant's burglary conviction, a person is guilty of burglary in the firstdegree "when he [or she] knowingly enters or remains unlawfully in a dwelling withintent to commit a crime therein, and when, in effecting entry or while in the dwelling orin immediate flight therefrom, he [or she] or another participant in the crime. . . [c]auses physical injury to any person who is not a participant in thecrime" (Penal Law § 140.30 [2]). Based upon our review of the record as a whole,we find that there is legally insufficient evidence to satisfy the intent element of thecrime.
" '[T]he purpose of the burglary statute is to protect against the specific dangersposed by entry into secured premises of intruders bent on crime' " (People vKonikov, 160 AD2d 146, 149 [1990], lv denied 76 NY2d 941 [1990],quoting People v Thompson, 116 AD2d 377, 380 [1986])—not to affordthe People an opportunity to elevate a misdemeanor assault to the felony of burglary inthe first degree simply upon a showing that "the [underlying] assault was preceded by thevictim's demand that the defendant exit the premises" (People v Konikov, 160AD2d at 154). As was the case in Konikov, none of the events that preceded theassault here sufficiently supports the inference that defendant harbored the intent toassault the victim upon entering the premises. Stated another way, the record does notsupport a finding that defendant possessed the necessary "contemporaneous intent" tocommit a crime (People v Gaines, 74 NY2d 358, 363 [1989]), and " '[a]defendant who simply trespasses with no intent to commit a crime inside a [*4]building [or dwelling] does not possess the more culpablemental state that justifies punishment as a burglar' " (People v Konikov, 160AD2d at 150, quoting People v Gaines, 74 NY2d at 362).
Although Konikov and our subsequent decision in People v Green (24 AD3d16 [2005]) are otherwise distinguishable, the legal principles and analysis containedtherein apply with equal force to the matter before us and, therefore, defendant'sconviction of burglary in the first degree cannot stand. The evidence is, however,sufficient to establish criminal trespass in the second degree, and defendant's convictionwill be reduced accordingly (see Penal Law § 140.15 [1]; People vGreen, 24 AD3d at 20; see also CPL 470.15 [2] [a]; 470.20 [4]). Defendant'sremaining contentions, including her assertion that she was deprived of a fair trial, havebeen examined and found to be lacking in merit.
Rose, J.P., Lahtinen and Stein, JJ., concur. Ordered that the judgment is modified, onthe law, by reducing defendant's convictions of burglary in the first degree under count 1of the indictment to criminal trespass in the second degree and criminal mischief in thethird degree under count 3 of the indictment to criminal mischief in the fourth degree;vacate the sentences imposed on said convictions and matter remitted to the CountyCourt of Franklin County for resentencing; and, as so modified, affirmed.
Footnote 1: At some point prior tothis date, the victim and Raymond Oakes resided together at the residence, which waslocated on McGee Road in the Town of Bombay, Franklin County. When therelationship between the two deteriorated, a dispute arose as to the ownership of thehome, prompting the victim and Raymond Oakes to seek the assistance of the St. RegisMohawk Tribal Council. According to Raymond Oakes, the Tribal Council ultimatelydetermined that he was the owner of the property, but the victim was allowed to remainin the residence until such time as Raymond Oakes went through the proper channels tohave her evicted, which apparently occurred in May 2010.
Footnote 2: Defendant's prior felonyconviction was for criminal possession of marihuana in the first degree.
Footnote 3: Defendant was onprobation at the time of her conviction and, after conducting a hearing, County Courtfound defendant to have violated the terms of her probation and sentenced her to2½ years in prison followed by two years of postrelease supervision. On appeal,this Court affirmed (People vBeauvais, 101 AD3d 1488 [2012]).
Footnote 4: According toinformation contained in the presentence investigation report, Renee Oakes, who by allaccounts was the instigator of the melee, was convicted following a jury trial of assault inthe third degree and was sentenced to three years of probation and 50 hours ofcommunity service. At the time that defendant was sentenced, Precious Boots apparentlywas awaiting trial.