| People v James |
| 2014 NY Slip Op 00834 [114 AD3d 1202] |
| February 7, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v GaryD. James, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (William F. Kocher, J.),rendered February 29, 2012. The judgment convicted defendant, upon a jury verdict, ofburglary in the first degree, unlawful imprisonment in the second degree and assault inthe second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice and on the law by reversing that partconvicting defendant of unlawful imprisonment in the second degree and dismissingcount two of the indictment and by reducing the sentence imposed for burglary in thefirst degree to a determinate term of five years of incarceration to be followed by threeyears of postrelease supervision and as modified the judgment is affirmed.
Memorandum: On appeal from the judgment convicting him upon a jury verdict ofburglary in the first degree (Penal Law § 140.30 [2]), unlawful imprisonment inthe second degree (§ 135.05) and assault in the second degree (§ 120.05[6]), defendant contends that his conviction of unlawful imprisonment should bedismissed pursuant to the merger doctrine. Although defendant failed to preserve hiscontention for our review (see CPL 470.05 [2]; People v Johnson, 204AD2d 1024, 1024 [1994], lv denied 84 NY2d 827 [1994]), we exercise ourpower to review it as a matter of discretion in the interest of justice (see CPL470.15 [6] [a]) and, because we agree with defendant, we modify the judgmentaccordingly. "Under the doctrine of judicial merger, an unlawful imprisonment orkidnapping that is incidental to and inseparable from the commission of another crimemerges with such other crime" (People v Moore, 154 AD2d 929, 929 [1989],lv denied 75 NY2d 773 [1989]). In determining whether the merger doctrineapplies herein, "our guiding principle is whether [defendant's] restraint [of the victim]was so much the part of another substantive crime[, i.e., the crime of assault,] that thesubstantive crime could not have been committed without such acts [constituting thecrime of unlawful imprisonment] and that independent criminal responsibility may notfairly be attributed to them" (People v McEathron, 86 AD3d 915, 915-916 [2011], lvdenied 19 NY3d 975 [2012] [internal quotation marks omitted]). Here, the brief"abduction" of the victim, i.e., the moment when defendant grabbed the victim andpulled him outside the dwelling at issue, was "merely 'preliminary, preparatory, orconcurrent action' in relation to the ultimate crime [of assault]" (People v Swansbrough, 22AD3d 877, 878 [2005], quoting People v Miles, 23 NY2d 527, 539 [1969],cert denied 395 US 948 [1969]), and we thus conclude that the [*2]unlawful imprisonment count merged with the assaultcount (see id.; see also People v Major, 142 AD2d 603, 604 [1988]).
Defendant failed to preserve for our review his contention that the evidence is legallyinsufficient to support the conviction of burglary in the first degree inasmuch as he madeonly a general motion for a trial order of dismissal (see People v Gray, 86 NY2d10, 19 [1995]) and, furthermore, he failed to renew the motion after presenting evidence(see People v Hines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678[2001]). In any event, that contention lacks merit.
First, defendant contends that the evidence with respect to the burglary conviction islegally insufficient because the People did not establish that defendant entered thevictim's dwelling with intent to commit the crime of unlawful imprisonment. " 'In orderto secure a conviction for burglary, the People need only allege and prove a knowing andunlawful entry coupled with an intent to commit a crime therein. There is no requirementthat the People allege or establish what particular crime was intended' " (People v Lewis, 5 NY3d546, 552 [2005], quoting People v Mahboubian, 74 NY2d 174, 193 [1989]).However, "[i]f the People . . . expressly limit[ ] their theory of the 'intent tocommit a crime therein' element to a particular crime, then they would have. . . to prove that the defendant intended to commit that crime" (id.at 552 n 7). Even assuming, arguendo, that the prosecutor expressly limited the"intent to commit a crime therein" to the crime of unlawful imprisonment, we rejectdefendant's contention that the burglary count necessarily fails upon our dismissal of theunlawful imprisonment count. To the extent that the People limited their theory of intentto the allegation that defendant intended to commit unlawful imprisonment, "the Peoplewere required to prove only that defendant intended to commit [that] crime[ ]"(People v Bibbes, 98 AD3d1267, 1269 [2012], amended on rearg 100 AD3d 1473 [2012], lvdenied 20 NY3d 931 [2012]), "not that he actually committed [that crime]"(People v Porter, 41 AD3d1185, 1186 [2007], lv denied 9 NY3d 963 [2007] [emphasis added]; seePeople v Mackey, 49 NY2d 274, 279 [1980]). Here, the People established thatdefendant intended to commit the crime of unlawful imprisonment upon entering thevictim's home, i.e., defendant intended to restrain the victim (see Penal Law§ 135.05), and the dismissal of the underlying count of unlawful imprisonmentbased on the merger doctrine does not impact the burglary conviction.
Second, defendant contends in support of his legal sufficiency challenge with respectto the burglary conviction that the evidence does not demonstrate that he entered thevictim's dwelling with the intent to commit any crime therein. We reject thatcontention (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). " 'Inburglary cases, the defendant's intent to commit a crime within the premises may beinferred beyond a reasonable doubt from the circumstances of the entry' " (People v Beaty, 89 AD3d1414, 1416 [2011], affd 22 NY3d 918 [2013]), his "unexplained presenceon the premises, and [his] actions and statements when confronted by police or theproperty owner" (People vOstrander, 46 AD3d 1217, 1218 [2007]; see People v Rodriguez, 17 NY3d 486, 489 [2011];People v Bracey, 41 NY2d 296, 301 [1977], rearg denied 41 NY2d 1010[1977]). Here, defendant's intent to commit the crime of unlawful imprisonment in thesecond degree, i.e., his intent to restrain the victim, may be inferred from the evidencethat defendant reached into the victim's dwelling and dragged him to the porch beforecontinuously punching him.
Third, defendant contends in support of his legal sufficiency challenge with respectto the burglary conviction that the People failed to establish that defendant causedphysical injury to the victim while entering the victim's dwelling, while in the dwelling,or while in immediate flight therefrom. We reject that contention. There is no dispute thatthe physical contact between defendant and the victim began when defendant grabbedthe victim inside the victim's home and continued as defendant pulled the victim onto theporch of that dwelling. We conclude that the circumstances of this case reflect acontinuous assault that began when defendant grabbed the victim inside the victim'sdwelling (see generally People vAlonzo, 16 NY3d 267, 270 [2011]; People v [*3]Snyder, 100 AD3d1367, 1367 [2012], lv denied 21 NY3d 1010 [2013]).
Defendant likewise failed to preserve for our review his contention that theconviction of assault in the second degree is not supported by legally sufficient evidence(see Gray, 86 NY2d at 19; see also Hines, 97 NY2d at 61), and in anyevent it lacks merit (see generally Bleakley, 69 NY2d at 495). Viewing theevidence in light of the crimes of burglary in the first degree and assault in the seconddegree as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), wereject defendant's further contention that the verdict with respect to those crimes isagainst the weight of the evidence (see generally Bleakley, 69 NY2d at 495).
Defendant further contends that he was denied a fair trial and thus that reversal isrequired based on the cumulative effect of various errors committed by County Court.We reject that contention. We note at the outset that we agree with defendant that thecourt erred with respect to its Sandoval ruling in failing "to make the necessarydetermination that the probative value of [defendant's prior convictions of criminalcontempt and resisting arrest] on the issue of defendant's credibility outweighed thepotential for prejudice to defendant" (People v Arnold, 298 AD2d 895, 896[2002], lv denied 99 NY2d 580 [2003]; see generally People v Williams,56 NY2d 236, 238-239 [1982]). In addition, the court erred in determining thatdefendant opened the door to the prosecutor's cross-examination of a defense witnessconcerning defendant's prior conviction of assault in the third degree (cf. People vFardan, 82 NY2d 638, 646 [1993]; People v Lyon, 77 AD3d 1338, 1338 [2010], lvdenied 15 NY3d 954 [2010]). Reversal is not required, however, because the court'serrors were harmless (seePeople v Wongsam, 105 AD3d 980, 981-982 [2013], lv denied 21NY3d 1012 [2013]; People vTowsley, 53 AD3d 1083, 1084 [2008], lv denied 11 NY3d 795 [2008];see generally People vGrant, 7 NY3d 421, 424 [2006]).
Defendant waived his further contention that he was denied a fair trial by the court'ssubmission of an annotated verdict sheet to the jury, inasmuch as the record establishesthat he consented thereto (seePeople v Cipollina, 94 AD3d 1549, 1550 [2012], lv denied 19 NY3d971 [2012]; see also People vJohnson, 96 AD3d 1586, 1587 [2012], lv denied 19 NY3d 1027[2012]). Defendant failed to preserve for our review his contentions concerning thecourt's failure to dismiss the indictment based on allegedly defective grand juryproceedings and the court's alleged error in allowing the prosecutor and an assistantprosecutor to read into the record at trial portions of defendant's grand jury testimony(see CPL 470.05 [2]). We decline to exercise our power to review thosecontentions as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]). We further conclude that the court did not err in admitting that redacted testimony inevidence and thus that defendant was not thereby denied a fair trial (see People vHarris, 249 AD2d 775, 777 [1998]).
Defendant likewise failed to preserve for our review his contention that he wasdenied a fair trial by prosecutorial misconduct (see CPL 470.05 [2]), and in anyevent it lacks merit. "Reversal based on prosecutorial misconduct is 'mandated only whenthe conduct [complained of] has caused such substantial prejudice to the defendant thathe has been denied due process of law' " (People v Jacobson, 60 AD3d 1326, 1328 [2009], lvdenied 12 NY3d 916 [2009]), and that cannot be said here. We reject defendant'sfurther contention that he did not receive effective assistance of counsel (seegenerally People v Baldi, 54 NY2d 137, 147 [1981]). To the extent that defendantcontends that defense counsel was ineffective in failing to object to the annotated verdictsheet and, indeed, in consenting to its submission, we conclude under the circumstancesof this case that such error was not so prejudicial as to deprive defendant of a fair trialand thus does not constitute ineffective assistance (see People v Kirkland, 49 AD3d 1260, 1261 [2008], lvdenied 10 NY3d 961 [2008], cert denied 555 US 1181 [2009]; seegenerally People v Benevento, 91 NY2d 708, 712-713 [1998]).
Finally, we agree with defendant that the sentence is unduly harsh and severe insofaras it imposes a determinate term of 6½ years of imprisonment on the burglaryconviction to be [*4]followed by five years of postreleasesupervision. We therefore further modify the judgment as a matter of discretion in theinterest of justice by reducing the sentence imposed for the burglary conviction to adeterminate term of five years of imprisonment to be followed by three years ofpostrelease supervision. Present—Smith, J.P., Fahey, Lindley, Valentino andWhalen, JJ.