| People v Royster |
| 2013 NY Slip Op 04847 [107 AD3d 1298] |
| June 27, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vWilliam Royster, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Albany County (Herrick,J.), rendered November 23, 2011, upon a verdict convicting defendant of the crimes ofburglary in the second degree, criminal possession of stolen property in the third degree,petit larceny (two counts), possession of burglar's tools and criminal possession of stolenproperty in the fifth degree.
Defendant was charged in an eight-count indictment in connection with the theft of amotor vehicle and two residential burglaries. He was convicted by a jury of one count ofburglary in the second degree, criminal possession of stolen property in the third degree,two counts of petit larceny, possession of burglar's tools and criminal possession ofstolen property in the fifth degree. County Court sentenced defendant, as a second felonyoffender, to an aggregate prison term of 17 to 20 years with five years of postreleasesupervision. He now appeals.
Defendant failed to preserve his challenge to the legal sufficiency of the evidence.Nevertheless, we will necessarily evaluate whether the evidence supports each element ofthe crimes in the course of our review of his claim that the verdict is contrary to theweight of the evidence (seePeople v Townsend, 94 AD3d 1330, 1330 n 1 [2012], lv denied 19NY3d 1105 [2012]). Where, as here, an acquittal would not have been unreasonable, weview the evidence in a neutral light and, while giving deference to the jury's credibilitydeterminations, " 'weigh the relative probative force of conflicting testimony and therelative strength of conflicting inferences [*2]that may bedrawn from the testimony' " (People v Bleakley, 69 NY2d 490, 495 [1987],quoting People ex rel. MacCracken v Miller, 291 NY 55, 62 [1943]). In doingso, we find merit in defendant's argument that the convictions of petit larceny withrespect to a cellular telephone taken from one of the residences and possession ofburglar's tools are against the weight of the evidence.
To convict defendant of petit larceny, the People were required to prove beyond areasonable doubt that he stole property (see Penal Law § 155.25). Thephone's owner testified that it was taken from her home and there was evidence that, inthe hours after the phone was stolen, it was used to call a telephone number belonging todefendant's mother as well as a local office of the Salvation Army, which reportedreceiving a message from defendant that same morning. There was, however, noevidence placing defendant near the home at any time and the stolen phone itself wasnever recovered. Inasmuch as the People's theory was that defendant had stolen thephone during the course of burglarizing the residence and he was acquitted of thatburglary, we conclude that the weight of the evidence does not support a finding thatdefendant stole the phone (seePeople v Danielson, 9 NY3d 342, 348-349 [2007]; compare People v Edwards, 96AD3d 1089, 1090-1091 [2012], lv denied 19 NY3d 1102 [2012]; People v Brisson, 68 AD3d1544, 1546-1547 [2009], lv denied 14 NY3d 798 [2010]).
The People also failed to prove that defendant, who had a screwdriver on his personupon his arrest, possessed that item "under circumstances evincing an intent to use [it]. . . in the commission of [a burglary]" (Penal Law § 140.35). Simplyput, there was no evidence that defendant had used the screwdriver in a mannerevidencing an unlawful intent. There was, on the other hand, evidence that homelessindividuals, such as defendant, often carry tools for other purposes. Accordingly,defendant's conviction for possession of burglar's tools was contrary to the weight of theevidence (see People vWatson, 45 AD3d 1342, 1343 [2007], lv denied 10 NY3d 818 [2008];compare People v Borrero, 26 NY2d 430, 436 [1970]; People v Morgan, 9 AD3d375, 376 [2004], lv denied 3 NY3d 741 [2004]).
Defendant also argues that his conviction for criminal possession of stolen propertyin the third degree for theft of a motor vehicle must be reversed because the People failedto prove his knowledge that the vehicle was stolen and that its value exceeded $3,000(see Penal Law § 165.50). In addition, defendant argues that County Courtabused its discretion by imposing an insufficient sanction for the People's failure totimely provide photographs of the vehicle and to photograph its motor as required byPenal Law § 450.10 (4) (c). We cannot agree. Where noncompliance with PenalLaw § 450.10 prejudices the defendant, the trial court must "instruct the jury that itmay consider such failure in determining the weight to be given such evidence" (PenalLaw § 450.10 [10]). The court may order additional sanctions as it sees fit(see Penal Law § 450.10 [10]; CPL 240.70 [1]). Here, County Courtadmitted the photographs, while providing the proper jury instruction and also informingthe jury that it should consider the lesser included offense of criminal possession ofstolen property in the fifth degree if the value of the vehicle was not proven beyond areasonable doubt. Given these measures taken by the court, we discern no abuse ofdiscretion (see People vPerkins, 56 AD3d 944, 946 [2008], lv denied 12 NY3d 786 [2009]).
Nor was the jury's conclusion that the vehicle was valued at over $3,000 against theweight of the evidence (seePeople v Hardy, 57 AD3d 1100, 1102 [2008], lv denied 12 NY3d 784[2009]). Despite the lack of photographic evidence of the vehicle's motor, the jury could[*3]reasonably infer that there was one from the owner'stestimony that she drove the vehicle home after the police returned the key to her and anappraiser's testimony that the vehicle was worth $17,950 as of the date of theft (seePeople v Sheehy, 274 AD2d 844, 845 [2000], lv denied 95 NY2d 938[2000]). The jury could also permissibly infer defendant's knowledge that the vehiclewas stolen from evidence that it had been taken from the owner's driveway with a sparekey, which was found hidden in defendant's shirt when he was arrested (see People vJackson, 282 AD2d 830, 832-833 [2001], lv denied 96 NY2d 902 [2001];People v Landfair, 191 AD2d 825, 826-827 [1993], lv denied 81 NY2d1015 [1993]). The remaining convictions were not contrary to the weight of theevidence, given that defendant was found in exclusive and recent possession of the stolenitems within the time frame when the owner of the home testified that they were takenfrom his residence by an intruder (see People v Baskerville, 60 NY2d 374, 382[1983]; People v Merritt, 96AD3d 1169, 1171 [2012], lv denied 19 NY3d 1027 [2012]).
Defendant's Molineux challenge is also unavailing. Evidence of unchargedcrimes was admissible here to establish defendant's identity and to complete a witness'snarrative that was inextricably interwoven with the evidence of the charged crimes (see People v Bickley, 99 AD3d1113, 1114-1115 [2012], lv denied 20 NY3d 1009 [2013]; People v Burnell, 89 AD3d1118, 1120 [2011], lv denied 18 NY3d 922 [2012]). Because a syringe capto a hypodermic needle had been found inside the stolen vehicle, evidence that defendantappeared to be under the influence of drugs when he was found by police and that therewas a bloody, used hypodermic needle lying near him was probative of his identity as thepossessor of the stolen vehicle. We cannot say that the People's failure to request pretrialreview of the proffered Molineux evidence warranted preclusion here, as theissue was discussed and ruled on outside of the presence of the jury, prior to anytestimony or references to defendant's alleged drug use (see People v Small, 12 NY3d732, 733 [2009]; People v Torres, 300 AD2d 46, 46-47 [2002], lvdenied 99 NY2d 633 [2003]). Further, County Court gave proper limitinginstructions and, as the probative value of the proof outweighed its prejudicial effect, itsadmission was not error (see People v Bickley, 99 AD3d at 1114; People v Buchanan, 95 AD3d1433, 1436 [2012]).
Finally, we are not persuaded by defendant's argument that the sentence was harshand excessive. Although the sentence imposed was greater than that offered to defendantprior to trial, there is no evidence indicating that he was punished for pursuing his rightto proceed to trial (see People vSouffrant, 93 AD3d 885, 887 [2012], lv denied 19 NY3d 968 [2012];People v Kidwell, 88 AD3d1060, 1062-1063 [2011]). Defendant's remaining contentions have been consideredand found to be unavailing.
Peters, P.J., Stein and Garry, JJ., concur. Ordered that the judgment is modified, onthe facts, by reversing defendant's convictions of petit larceny and possession of burglar'stools under counts 2 and 5 of the indictment; said counts dismissed and the sentencesimposed thereon vacated; and, as so modified, affirmed.