| People v McFarland |
| 2013 NY Slip Op 03129 [106 AD3d 1129] |
| May 2, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v KaronMcFarland, Appellant. |
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Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Garry, J. Appeal from a judgment of the Supreme Court (Coccoma, J.), renderedMarch 21, 2011 in Schenectady County, upon a verdict convicting defendant of thecrimes of assault in the first degree, burglary in the first degree (four counts) and criminalpossession of a weapon in the second degree (two counts).
In February 2010, the victim was shot in the face in her home in the City ofSchenectady, Schenectady County. Thereafter, defendant was arrested and charged withseveral crimes related to the shooting. Following a jury trial, he was convicted of assaultin the first degree, burglary in the first degree (four counts) and criminal possession of aweapon in the second degree (two counts), and sentenced to an aggregate prison term of31 years followed by five years of postrelease supervision. Defendant appeals.
Initially, we find the evidence that defendant "knowingly enter[ed]" the victim'sdwelling legally sufficient to support his burglary convictions (Penal Law §140.30). The victim testified that she was inside her second-floor apartment when herdoorbell began ringing repeatedly, and she heard defendant—a former friendwhom she described as her "stalker"—outside the locked first-floor front door,demanding to be let in. She refused and attempted to ignore him, but then, upon hearingbanging sounds, she stepped onto a stair landing where she saw defendant kickingrepeatedly at a plexiglass window in the door until it fell inward. The [*2]victim remembered nothing more of the incident, but apolice officer testified that, upon arriving at the scene shortly thereafter, he found thewindow on the floor inside the locked door, leaving a space large enough to stepthrough; the victim was lying on the stair landing with gunshot wounds. "[T]he entryelement of burglary is satisfied 'when a person intrudes within a building, no matter howslightly, with any part of his or her body' " (People v Prince, 51 AD3d 1052, 1054 [2008], lvdenied 10 NY3d 938 [2008], quoting People v King, 61 NY2d 550, 555[1984]), and kicking in a window constitutes an entry even when the perpetrator thenflees without further intruding into the building (see People v Cleveland, 281AD2d 815, 816 [2001], lv denied 96 NY2d 900 [2001]). Accordingly, evenbefore considering the additional evidence discussed below, there was "a valid line ofreasoning and permissible inferences that could lead a rational person to the conclusion"that defendant entered the victim's home (People v Hall, 57 AD3d 1222, 1225 [2008], lvdenied 12 NY3d 817 [2009]).
Defendant failed to preserve the legal sufficiency challenges he now raises to hisother convictions, but in reviewing his claim that the verdict is contrary to the weight ofthe evidence, this Court evaluates the evidence adduced as to each element of the crimes(see People v Danielson, 9NY3d 342, 348-349 [2007]; People v Tucker, 95 AD3d 1437, 1438 [2012], lvdenied 19 NY3d 1105 [2012]). With regard to his convictions for criminalpossession of a weapon in the second degree, he contends that, as no witnesses saw himcarrying a weapon and no weapon or shell casings attributable to the crime were everfound, the People failed to prove that he "possesse[d] a loaded firearm" (Penal Law§ 265.03 [1] [b]; see Penal Law § 265.03 [3]). However, a StatePolice firearms examiner testified that spent bullets found at the scene were fired eitherby a pistol or a revolver, thus establishing that the weapon used was a firearm within themeaning of Penal Law § 265.00 (3). Circumstantial evidence that defendantpossessed this firearm included the victim's testimony that he was the man who kicked inher door just before she was shot, as well as that of a witness in her apartment who heardfootsteps "charg[e]" up the stairs, followed by four loud "bangs" and the sound offootsteps running down again moments before the wounded victim was found on thelanding. Neighbors heard gunshots and saw a man fitting defendant's description run outof the victim's front door and drive away, and a dollar bill bearing defendant's "touchDNA" was found on the victim's stairs. Defendant offers an alternate explanation for thepresence of this DNA in that he had obtained cash for the victim earlier that evening, andpoints to conflicting details in the witness testimony describing the suspect seen runningfrom the scene and other events surrounding the shooting. These inconsistenciespresented issues of credibility to be resolved by the jury (see People v Jackson,65 NY2d 265, 272 [1985]; People v Moyer, 75 AD3d 1004, 1006 [2010]), and we areunpersuaded that the jury failed to give the evidence the proper weight in concluding thatdefendant possessed the loaded firearm with which the victim was shot (see People v Mateo, 13 AD3d987, 988 [2004], lv denied 5 NY3d 883 [2005]; People v Jackson,302 AD2d 748, 749-750 [2003], lv denied 100 NY2d 539 [2003]). Moreover,viewing the evidence in a neutral light and weighing the probative force of theconflicting testimony and inferences to be drawn from the evidence (see People v Mariano, 101AD3d 1367, 1367-1368 [2012]; People v Clark, 51 AD3d 1050, 1051-1052 [2008], lvdenied 10 NY3d 957 [2008]), we find no reason to disturb any of the otherconvictions.
Supreme Court properly refused to suppress a police tape recording of a telephoneconversation between defendant and his sister. During questioning at the police station,defendant asked if he could make a telephone call, and a detective escorted him to a deskphone and dialed his sister's number for him. Throughout the ensuing conversation, thedetective remained within five feet of defendant, who did not whisper or otherwiseattempt to conceal the [*3]discussion and even engagedthe detective in part of the conversation by asking him questions. Defendant contendedthat he had a reasonable expectation of privacy during this conversation, and now furtherasserts that police committed the crime of eavesdropping by recording this conversation(see Penal Law § 250.05). We agree with Supreme Court's rejection of theprivacy claim, and the unpreserved eavesdropping claim does not warrant modification inthe interest of justice (compare People v Lasher, 58 NY2d 962, 963 [1983]; People v Ogburn, 46 AD3d1018, 1019 [2007], lv denied 10 NY3d 769 [2008]).
Finally, defendant contends correctly, in part, that there was an error in hissentencing. Concurrent sentences are required "for two or more offenses committedthrough a single act or omission, or through an act or omission which in itself constitutedone of the offenses and also was a material element of the other," but consecutivesentences may be imposed when the actions underlying the crimes are separate anddistinct (Penal Law § 70.25 [2]; see People v Laureano, 87 NY2d 640, 643[1996]; People v Wright, 1AD3d 707, 708-709 [2003], lv denied 1 NY3d 636 [2004]). Supreme Courtsentenced defendant to a prison term of 22 years for the conviction for assault in the firstdegree pursuant to Penal Law § 120.10 (4), and to a consecutive term of nine yearson his conviction for burglary in the first degree pursuant to Penal Law § 140.30(1). As these crimes each required the commission of disparate and separate acts, thesentences were appropriate (seePeople v Faulkner, 36 AD3d 951, 953 [2007], lv denied 8 NY3d 922[2007]; People v Kownack,20 AD3d 681, 682 [2005]).
However, there was an error made at the next step; it appears that Supreme Courttransposed two of the charge numbers from the indictment in pronouncing parts of thesentence. Read as a whole, it appears from the sentencing minutes that the court intendedto impose concurrent sentences upon the remaining burglary convictions, such that thefour burglary sentences would be concurrent to each other but consecutive to the assaultsentence—but as a result of the transposition of the count numbers, each of thethree remaining burglary sentences was instead made consecutive to the initial burglarysentence and concurrent to the assault sentence. Further, this error was captured and setforth within the commitment order. As defendant contends, the sentences on the fourburglary convictions must run concurrently with one another (see CPL 300.30[3], [4]; Penal Law § 140.30 [1], [2], [3], [4]; People v Kulakov, 278AD2d 519, 520-521 [2000], lv denied 96 NY2d 785 [2001]; People vDaniels, 165 AD2d 610, 611-612 [1991], lv denied 78 NY2d 1010 [1991]).Finally, the sentences for the two convictions for criminal possession of a weapon wereproperly stated, such that these two nine-year prison terms run consecutively to theassault sentence but concurrently with each other and the other nine-year sentences.Thus, as Supreme Court stated at the conclusion of sentencing, the result is an aggregateprison term on all charges of 31 years, together with five years of postreleasesupervision.
Lahtinen, J.P., Stein and Spain, JJ., concur. Ordered that the judgment is modified,on the law, by reversing so much thereof as imposed consecutive sentences for burglaryin the first degree on counts 6, 7 and 8 of the indictment and directed these sentences torun consecutively to the sentence imposed on count 5 of the indictment and concurrentlywith the sentence imposed for assault in the first degree on count 4 of the indictment;said burglary sentences are to run concurrently with one another and with the sentencesfor criminal possession of a weapon in the second degree on counts 9 and 10 of theindictment, and consecutively to the sentence for assault in the first degree on count 4 of[*4]the indictment; and, as so modified, affirmed.