| People v DeFreitas |
| 2014 NY Slip Op 02350 [116 AD3d 1078] |
| April 3, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Desmond DeFreitas, Appellant. |
—[*1] James Sacket, District Attorney, Schoharie (Michael L. Breen of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Schoharie County(Bartlett III, J.), rendered February 3, 2010, upon a verdict convicting defendant of thecrimes of burglary in the second degree, criminal sexual act in the third degree, rape inthe third degree (two counts) and endangering the welfare of a child (two counts).
Defendant was charged in a 15-count indictment with various crimes based uponallegations that, among other things, he knowingly entered property located at 306Kingsley Road in the Town of Gilboa, Schoharie County on or about October 22, 2007with the intent to commit a sexual crime against victim A (born in 1992) and, inconjunction therewith, compelled victim A's sister—victim B—to act as alookout. Following a lengthy jury trial, defendant was convicted of burglary in thesecond degree, criminal sexual act in the third degree (victim A), two counts of rape inthe third degree (victim A) and two counts of endangering the welfare of a child (victimsA and B). Prior to sentencing, defendant moved to set aside the verdict upon the groundthat he had been denied the right to a public trial. County Court denied defendant'smotion and thereafter sentenced defendant to an aggregate prison term of 12 yearsfollowed by 10 years of postrelease supervision. This appeal by defendant ensued.
Defendant initially contends that he was denied the right to a public trial—anargument premised upon the fact that a local attorney who wished to observe defendant'strial met with [*2]resistance from a court attendant whenhe first attempted to enter the courtroom. Assuming this argument has been adequatelypreserved for our review, we disagree. The case law makes clear that "[a] denial of thepublic trial right requires an affirmative act by the trial court excluding persons from thecourtroom, which in effect explicitly overcomes the presumption of openness"(People v Peterson, 81 NY2d 824, 825 [1993]; accord People v Martin, 16NY3d 607, 613 [2011]; seePeople v Torres, 97 AD3d 1125, 1127 [2012], affd 20 NY3d 890[2012]). Here, it is undisputed that County Court did not close the courtroom tospectators, defendant concedes that the attorney in question, who does not appear to havehad any connection to defendant's case, was in fact allowed to enter the courtroom andobserve the proceedings (compare People v Moise, 110 AD3d 49, 54 [2013]) and therecord does not otherwise support defendant's entirely speculative assertion thatunidentified members of the public were actually excluded from the proceedings.Accordingly, no violation of defendant's 6th Amendment right to an open trial wasestablished.
Nor are we persuaded that County Court erred in failing to grant defendant'schallenges for cause with respect to juror Nos. 5, 10 and 14. Insofar as is relevant here, ajuror may be discharged for cause where he or she "has a state of mind that is likely topreclude him [or her] from rendering an impartial verdict based upon the evidenceadduced at the trial" or "bears some . . . relationship to [a prospectivewitness or counsel] of such nature that it is likely to preclude him [or her] from renderingan impartial verdict" (CPL 270.20 [1] [b], [c]). In this regard, although juror No. 5indicated that she had read an article about the case shortly before the trial began, shethereafter indicated that she could view the evidence fairly (see People v Russell, 55 AD3d940, 941 [2008], lv denied 11 NY3d 900 [2008]; cf. People v Reichel, 110AD3d 1356, 1359 [2013], lv denied 22 NY3d 1090 [2014]) and nothing inthe record suggests that she had formed an opinion as to defendant's guilt or innocencethat cast serious doubt upon her ability to render an impartial verdict (compare People v Harris, 19NY3d 679, 685-686 [2012]). Similarly, although juror Nos. 10 and 14 eachindicated that they knew the Assistant District Attorney prosecuting the case and/oranother member of the District Attorney's office, "[n]ot all relationships between aprospective juror and a potential witness or interested party require disqualification forcause as a matter of law" (People v Furey, 18 NY3d 284, 287 [2011]). Rather, "[t]hefrequency of contact and [the] nature of the parties' relationship are to be considered indetermining whether disqualification is necessary" (id.; accord People v Greenfield,112 AD3d 1226, 1228 [2013]). Based upon our review of the voir dire, we aresatisfied that the challenged relationships "were either not particularly close ones or arosein a professional context and thus were not of a type to preclude . . . juror[Nos. 10 and 14] from rendering an impartial verdict" (People v Molano, 70 AD3d1172, 1174 [2010], lv denied 15 NY3d 776 [2010]; see People v Thompson, 92AD3d 1139, 1140 [2012], affd 21 NY3d 555 [2013]; compare People v Smith, 52AD3d 847, 847-848 [2008]; People v Clark, 125 AD2d 868, 869 [1986],lv denied 69 NY2d 878 [1987]).
Finally, we cannot say that County Court abused its discretion in denying defendant'sadditional challenge for cause as to juror No. 14 based upon concerns that the trialschedule would interfere with her employment responsibilities. As this Court hasobserved, "[s]light interference with employment or inconvenience related to sitting on ajury are insufficient grounds to support a challenge for cause . . . [because]almost every potential juror is inconvenienced by taking a week or more away from one'swork or normal routine, and . . . each has personal concerns which couldcause some distraction from [the] trial" (People v Wilson, 52 AD3d 941, 942 [2008], lvdenied 11 NY3d 743 [2008]). Accordingly, dismissal is not warranted unless thejuror indicates that he or she would be distracted or preoccupied to the extent that it[*3]would preclude him or her from deliberating in a fairand impartial manner (cf.People v Clark, 52 AD3d 860, 862-863 [2008], lv denied 11 NY3d 831[2008]; People v Danton,27 AD3d 354, 354-355 [2006], lv denied 7 NY3d 754 [2006]; People vSipas, 246 AD2d 408, 408 [1998]). Here, none of the answers given by juror No. 14in response to counsels' or County Court's questioning in any way intimated that shewould be incapable of rendering an impartial verdict (cf. People v Nettles, 88 AD3d 492, 493 [2011], lvdenied 18 NY3d 861 [2011]; People v Morales, 36 AD3d 631, 632 [2007], lvdenied 8 NY3d 925 [2007]; People v Butler, 281 AD2d 333, 333 [2001],lv denied 96 NY2d 899 [2001]). Accordingly, County Court did not abuse itsdiscretion in failing to discharge juror No. 14 upon this ground.
Defendant next asserts that County Court improperly curtailed his right to present adefense by, among other things, limiting his efforts to impeach the testimony of GeorgeBird, the State Police investigator involved in this matter. Here, while cross-examiningBird, defense counsel inquired as to whether Bird had attempted to persuade a particularyoung girl—who was not one of the victims identified in the underlyingindictment—to accuse defendant, a family friend, of raping her. Bird admittedquestioning the child as to whether defendant ever had sex with her, but he denied that heyelled, pounded on a table or otherwise attempted to coax or coerce a statement from thisindividual. Defense counsel then called the child as a witness and sought to impeachBird's credibility by eliciting testimony to the effect that Bird did pound on the table andgenerally attempted to "browbeat her into accusing [defendant] of sexually abusing her."Defense counsel also called the child's mother as a witness—seeking to establishthat when Bird's alleged efforts to intimidate the child failed, the caseworker who hadbeen present for the underlying interview endeavored to employ similar tactics with thechild's mother. In both instances, County Court precluded the sought-after testimony.
"The general rule of evidence in this State concerning the impeachment of witnesseswith respect to collateral matters is that the cross-examiner is bound by the answers ofthe witness to questions concerning collateral matters inquired into solely to affectcredibility. . . . [Hence,] the party who is cross-examining a witness cannotintroduce extrinsic documentary evidence or call other witnesses to contradict a witness'answers concerning collateral matters solely for the purpose of impeaching that witness'credibility" (People v Pavao, 59 NY2d 282, 288-289 [1983] [internal quotationmarks and citation omitted]; seePeople v Jimmeson, 101 AD3d 1678, 1679 [2012], lv denied 21 NY3d944 [2013]; People v Salim,96 AD3d 1484, 1485 [2012], lv denied 19 NY3d 1028 [2012]; see also People v Hanley, 5NY3d 108, 112 [2005]). While it is true, as defendant points out, that "extrinsicproof tending to establish a reason to fabricate is never collateral and may not beexcluded on that ground" (People v Hudy, 73 NY2d 40, 56 [1988]; accord People v Alnutt, 101AD3d 1461, 1465 [2012], lv denied 21 NY3d 941 [2013], certdenied 571 US —, 134 S Ct 1035 [2014]; see People v Grant, 60 AD3d 865, 865 [2009]), thisgeneral principle is of no aid to defendant here.
As a starting point, Bird's alleged intimidation tactics were not directed at acomplaining witness (compare People v Hudy, 73 NY2d at 57-58). The child inquestion, who steadfastly denied that defendant ever touched her, did not implicatedefendant in any wrongdoing (compare id.; People v Alnutt, 101 AD3dat 1465; People v Grant, 60 AD3d at 865), nor did she have any testimony tooffer relative to either victim A's or victim B's potential motive to lie (compare People v Diaz, 85AD3d 1047, 1049-1050 [2011], affd 20 NY3d 569 [2013]; People v Gomez, 79 AD3d1065, 1066-1067 [2010]; People v McFarley, 31 AD3d 1166, 1166-1167 [2006]; People v Sampel, 16 AD3d1023, 1024 [2005]). At best, the child's testimony would have [*4]demonstrated that Bird lied about pounding on the tableand attempting to intimidate her—issues that, to our analysis, concern collateralmatters designed solely to impeach Bird's credibility. To the extent that defendant arguesthat the sought-after testimony was relevant to establish that Bird was "out to get" him,that issue was fully explored at trial, and the requested testimony was in no way relevantto defendant's unsubstantiated assertion that Bird "planted" the DNA evidence againsthim. Under these circumstances, we discern no abuse of discretion in County Court'scurtailment of defense counsel's questioning of the child or her mother.
We reach a similar conclusion with respect to the limits placed upon defensecounsel's cross-examination of both victim B and the victims' brother, as well as defensecounsel's direct examination of Kerrianne Dahlberg. Based upon our review of therelevant witnesses' testimony and defense counsel's proposed lines of questioning, we donot find that the reasonable restrictions imposed upon counsel's inquiries impaireddefendant's ability to present a defense. Moreover, even assuming that the recordrevealed some impropriety in this regard, we nonetheless would conclude that any sucherror was harmless in light of the overwhelming evidence of defendant's guilt (seePeople v Crimmins, 36 NY2d 230, 237 [1975]; cf. People v Hilliard, 49 AD3d 910, 913 [2008], lvdenied 10 NY3d 959 [2008]; compare People v Thompson, 111 AD3d 56, 67-68[2013]).
We do, however, find merit to defendant's claim that there is legally insufficientevidence to support his conviction of burglary in the second degree under count 7 of theindictment.[FN1]Insofar as is relevant here, a person is guilty of burglary in the second degree when he orshe "knowingly enters or remains unlawfully in a building with intent to commit a crimetherein, and when . . . [t]he building is a dwelling" (Penal Law §140.25 [2]; see People vPierce, 106 AD3d 1198, 1199 [2013]). A "dwelling," in turn, is defined as "abuilding which is usually occupied by a person lodging therein at night" (Penal Law§ 140.00 [3]; see People vCummings, 16 NY3d 784, 785 [2011], cert denied 565 US —,132 S Ct 203 [2011]; People v Ferguson, 285 AD2d 838, 839 [2001], lvdenied 97 NY2d 641 [2001]). In ascertaining whether a particular structureconstitutes a dwelling, we will consider "(1) whether the nature of the structure was suchthat it was adapted for occupancy at the time of the wrongful entry; (2) the intent of theowner to return; and, (3) whether, on the date of the entry, a person could have occupiedthe structure overnight" (People v Quattlebaum, 91 NY2d 744, 748 [1998];see People v Barney, 294 AD2d 811, 812 [2002], affd 99 NY2d 367[2003]).
Here, although the property in question—306 KingsleyRoad—possessed some of the characteristics of a residential dwelling, it is unclearwhether, on the day of the underlying crime, the structure was suitable foroccupancy.[FN2]More to the point, the homeowners testified that no one lived at 306 Kingsley Roadduring either 2007 or 2008 and, with the exception of one or two evenings in July 2007,no one occupied the property overnight. While it is true that "a dwelling does not lose itscharacter as such merely because its occupant is temporarily absent" (People v [*5]Ferguson, 285 AD2d at 839 [internal quotation marksand citation omitted]; seePeople v Henry, 64 AD3d 804, 805 [2009], lv denied 13 NY3d 860[2009]), the record here demonstrates that no one usually occupied 306 KingsleyRoad—either before, during or after the crime—and, absent suchoccupancy, there could be no corresponding intent to return (see People v Lowe,284 AD2d 413, 414-415 [2001], lv denied 96 NY2d 921 [2001]; People vMurray, 278 AD2d 898, 899-900 [2000], lv dismissed and denied 96 NY2d804 [2001]; compare People v Barney, 99 NY2d 367, 370-371 [2003]; People v Montgomery, 1AD3d 984, 984 [2003], lv denied 1 NY3d 631 [2004]; People vGulnac, 309 AD2d 1070, 1070-1071 [2003]; People v Chandler, 307 AD2d585, 585-586 [2003], lv denied 100 NY2d 641 [2003]; People vFerguson, 285 AD2d at 839). Under these circumstances, we find that the Peoplefailed to establish that the structure in question was a dwelling and, therefore, we findthat there is legally insufficient evidence to support defendant's conviction of burglary inthe second degree. The evidence adduced at trial is, however, legally sufficient toestablish burglary in the third degree (see Penal Law § 140.20), anddefendant's conviction is reduced accordingly (see People v Murray, 278 AD2dat 898). Defendant's remaining contentions, to the extent not specifically addressed, havebeen examined and found to be lacking in merit.
Peters, P.J., Stein and Rose, JJ., concur. Ordered that the judgment is modified, onthe law, by reducing defendant's conviction of burglary in the second degree under count7 of the indictment to burglary in the third degree; vacate the sentence imposed on saidconviction and matter remitted to the County Court of Schoharie County forresentencing; and, as so modified, affirmed.
Footnote 1: With respect to thiscount, defendant was convicted based upon his knowing and unlawful entry into 306Kingsley Road on or about October 22, 2007 with the intent to commit the crime of rapein the third degree.
Footnote 2: During a brief period ofuse in July 2007, the homeowners rented a "porta-potty" for the structure.