| People v Anderson |
| 2014 NY Slip Op 04270 [118 AD3d 1138] |
| June 12, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vChristopher L. Anderson, Appellant. |
David E. Woodin, Catskill, for appellant.
Paul Czajka, District Attorney, Hudson (H. Neal Conolly of counsel), forrespondent.
Stein, J.P. Appeal from a judgment of the County Court of Columbia County(Nichols, J.), rendered August 15, 2012, upon a verdict convicting defendant of thecrimes of robbery in the first degree, burglary in the first degree (four counts), burglary inthe second degree, criminal possession of a weapon in the second degree (two counts)and criminal possession of a weapon in the third degree.
Over the course of three days in January 2012, there were three separate homeinvasions in Columbia County, the last of which occurred during the early morning hoursof January 12 when David Chrapowitzky and Barbara Chrapowitzky woke up in theirhome and saw intruders. After the intruders left, the Chrapowitzkys called 911, describedthem as two males, one of whom was wearing a mask and the other a bandana across hisface, and both wearing black hooded sweatshirts. Both of the men were armed and, afterthey exited the house, the Chrapowitzkys heard a vehicle leaving. Donald Krapf, asergeant with the Columbia County Sheriff's Department, responded to the 911 call and,while traveling to the residence, observed a suspicious vehicle. Krapf kept the vehicle inhis view for a few minutes and was eventually able to see that defendant—whowas driving—was wearing a black hooded sweatshirt. Krapf also observed thevehicle turn without a directional signal being employed and effectuated a traffic stop ofthe vehicle, which was occupied by defendant and four others, including Jeremy Bostand Joshua Spencer. Bost was asked to exit the vehicle and a pat down revealed two gunsin the waistband of his pants. Physical evidence linking defendant to the three burglarieswas found in [*2]the vehicle and, later, in defendant'sresidence.
Defendant, Bost and Spencer were arrested and were each charged in an indictmentwith burglary in the first degree (four counts), criminal possession of a weapon in thesecond degree (two counts), criminal possession of weapon in the third degree, robberyin the first degree and burglary in the second degree. Following a suppression hearing,County Court determined that Krapf had probable cause to stop defendant's vehicle andrefused to suppress the evidence seized as a result thereof. County Court subsequentlysevered defendant's trial from his codefendants' trial and defendant was convicted by ajury as charged. Defendant was sentenced, as a second violent felony offender, to anaggregate prison term of 80 years, to be followed by five years of postreleasesupervision. Defendant now appeals, and we affirm.
Initially, we reject defendant's claim that County Court failed to acquire personaljurisdiction over him because he was not arraigned in accordance with the statutoryrequirements (see CPL 210.15 [1]). Defendant was present at the arraignment,during which his counsel waived a formal reading of the charges, acknowledged receiptof the indictment and entered a plea of not guilty on each and every count therein. Thus,the statutory requirements were satisfied (see CPL 210.15; People v Oakley, 112 AD3d1064, 1064 [2013], lv denied 22 NY3d 1140 [2014]; People vBuckner, 274 AD2d 832, 833 [2000], lv denied 95 NY2d 904 [2000]).
We also find no merit to defendant's contention that County Court should havesuppressed the evidence derived from the traffic stop. Probable cause to believe that aperson has violated a provision of the Vehicle and Traffic Law provides an" 'objectively reasonable basis' " for the stop of a vehicle (People v Brock, 107 AD3d1025, 1026 [2013], lv denied 21 NY3d 1072 [2013], quoting People v Pealer, 20 NY3d447, 457 n 2 [2013], cert denied 571 US &mdash, 134 S Ct 105 [2013]; see People v Thompson, 106AD3d 1134, 1135 [2013]; People v McLean, 99 AD3d 1111, 1111-1112 [2012],lv denied 20 NY3d 1013 [2013]; People v Viele, 90 AD3d 1238, 1239 [2011], lvdenied 19 NY3d 868 [2012]; People v Green, 80 AD3d 1004, 1004-1005 [2011]). Here,Krapf testified at the probable cause hearing that, as he was responding to the 911 call,he observed defendant's vehicle fail to signal when it made a left-hand turn (seeVehicle and Traffic Law § 1163 [d]).[FN1] County Court assessed that testimonyas credible, and the objective reasonableness of the stop was not negated by anysubjective intention that Krapf might have had in connection with his desire toinvestigate the possibility that the occupants of the vehicle were involved in thatevening's burglary (see People v McLean, 99 AD3d at 1112; People vViele, 90 AD3d at 1239). Krapf also observed the vehicle—which was theonly one on the road—in close geographical and temporal proximity to the sceneof the reported crime, as well as the fact that defendant was wearing clothing thatmatched the description of the perpetrators and that another occupant in the car wasmoving suspiciously. Based on this testimony, and according deference to CountyCourt's credibility assessments, we discern no basis to disturb that court's finding thatthere was probable cause to stop defendant's vehicle.
[*3] We turn next to defendant's argument that the jury'sverdict was against the weight of the evidence because the People failed to prove beyonda reasonable doubt his identity as a perpetrator in the home invasions. Shortly after theburglary at the Chrapowitzky home, defendant was seen driving a vehicle in a nearbylocation wearing clothing that matched the description of the perpetrator. Certain itemslinked to the three burglaries were found in the vehicle and Bost had two guns in hiswaistband. Also, the Chrapowitzkys and Edrick King, one of the victims of the firstburglary, identified those guns as the weapons that were used by the perpetrators, andLucas Samascott, the victim of the second burglary, identified items found in the vehicleand at defendant's residence as items that had been taken from his home.[FN2] Additionally, theChrapowitzkys were able to make an in-court identification of defendant as one of thetwo perpetrators, and David Chrapowitzky identified the mask found in defendant'svehicle as the mask worn by one of the intruders. Finally, King identified a black jacketthat was later found in defendant's jail locker as the jacket that was worn by the shorterof the two intruders at his home.
Catrina Lewis, who was in the vehicle with defendant, Bost and Spencer on all threeoccasions, testified that, each time, the vehicle stopped at a house, the three men got outof the vehicle and returned a short time later. Lewis also testified that during the firstincident, the three men returned carrying a bag, which they later threw out of thewindow. That bag was recovered and the other victim of the first burglary identified it asa bag belonging to him that had been taken from his home. Shaeancye Anthony-Lewis,who was also in the car after the last home invasion, testified that she saw defendanthand a weapon to Bost. In addition, the People proffered evidence that both of theweapons recovered on Bost were operable, and that defendant had previously beenconvicted of a felony.
Although defendant challenges the credibility of Lewis and Anthony-Lewis, as wellas the victims' descriptions of the perpetrators, the identification of the weapons and thein-court identification of defendant by the Chrapowitzkys, these issues were fullyexplored at trial and presented a credibility issue for the jury to resolve. Thus, while adifferent verdict would not have been unreasonable, when we view the evidence in aneutral light and defer to the jury's superior position to determine witness credibility, weare satisfied that the verdict as to each of the charges was in accord with the weight ofthe evidence (see People vDanielson, 9 NY3d 342, 348 [2007]; People v Perry, 116 AD3d 1253, 1255 [2014]; People v Ferrer, 113 AD3d964, 965 [2014]; People vWoodrow, 91 AD3d 1188, 1190 [2012], lv denied 18 NY3d 999[2012]).
We are also unpersuaded by defendant's claim that reversal is required due to avariety of trial errors. Initially, defendant contends that the People's failure to turn overthe video-recorded questioning of King, as well as handwritten notes of that questioningtaken by the investigator, constituted a Brady/Rosario violation that warranteddismissal of the charges relating to King. The District Attorney revealed that he had justlearned of the existence of the investigator's notes and the video recording at theconclusion of King's trial testimony. After viewing these items outside the presence ofthe jury, defendant's counsel objected to the late disclosure and requested, as a sanction,that the three relevant counts of the indictment be dismissed. Defendant's counseldeclined County Court's offers to amend his opening statement and to present the videorecording to the jury, but did reopen his cross-examination of King to question himregarding the inconsistencies between his pretrial statements and his trial testimony [*4]concerning various aspects of his description of theperpetrators.
While we agree that the People's failure to timely disclose the aforementionedevidence constituted a Brady and/or Rosario violation, defendant failed toshow "a reasonable possibility that the result at trial would have been different if thematerials had been timely disclosed" (People v Williams, 50 AD3d 1177, 1180 [2008];see CPL 240.45 [1] [a]; People v Dawson, 110 AD3d 1350, 1352 [2013]),particularly considering the remedies made available to defendant by County Court.Under these circumstances, County Court's refusal to sanction the People by dismissingthose counts in the indictment was a provident exercise of its discretion (see People v Williams, 7 NY3d15, 19 [2006]; People v Jenkins, 98 NY2d 280, 284 [2002]).
Nor did County Court err by precluding defendant from calling as a witness theinvestigator who questioned King. Following the close of the People's case, defendant'scounsel disclosed that he intended to call the investigator regarding the statements thatKing made to him. Although defendant contends that the investigator's testimony wasoffered to impeach King's testimony with regard to his description of the perpetrators ofthe crime, King admitted on cross-examination that he told the investigator that he hadthought one of the men in his residence had a Spanish accent and might have been aperson he knew named Fernando. Thus, to this extent, King's testimony was notinconsistent with the offer of proof regarding the investigator's testimony (see People v Hamm, 96 AD3d1482, 1483 [2012], affd 21 NY3d 708 [2013]). Moreover, to the extent thatKing's trial testimony regarding his description of the height of the perpetrators differedfrom what he told the investigator, defendant's counsel was able to challenge the allegedinconsistencies of King's description through the reopened cross-examination anddeclined County Court's offer to play the video recording of King's interview with theinvestigator for the jury. Under these circumstances, we discern no abuse of the court'sdiscretion in precluding the investigator's testimony.
Contrary to defendant's assertion, we also conclude that County Court properlydenied his request to charge the jury that Lewis and Anthony-Lewis were accompliceswhose testimony required corroboration connecting defendant to the commission of thecrimes (see CPL 60.22 [1]; compare People v Medeiros, 116 AD3d 1096, 1097-1098[2014]). For the purposes of the corroboration requirement, an accomplice is defined as aperson who "may reasonably be considered to have participated in . . . [t]heoffense charged; or . . . [a]n offense based upon the same or some of thesame facts or conduct which constitute the offense charged" (CPL 60.22 [2]; seePeople v Sage, 23 NY3d 16, 23 [2014]; People v Medeiros, 116 AD3d at 1097-1098). "Thus, to be anaccomplice for corroboration purposes, the witness 'must somehow be criminallyimplicated and potentially subject to prosecution for the conduct or factual transactionrelated to the crimes for which the defendant is on trial' " (People vMedeiros, 116 AD3d at 1098, quoting People v Adams, 307 AD2d 475, 476[2003], lv denied 1 NY3d 566 [2003]).
Notwithstanding the fact that both Lewis and Anthony-Lewis were arrested andcharged with conspiracy in the fourth degree,[FN3] when we consider the evidencepresented at trial with respect to the extent of their involvement (see People vSage, 23 NY3d 16, 24), neither met the definition of an accomplice (compare People v Shelton, 98 AD3d 988, 990-991[*5][2012]). Lewis's testimony reveals that her involvementwas limited to her presence in the vehicle when defendant, Bost and Spencer traveled tothe victims' residences and, similarly, Anthony-Lewis was merely present in the vehiclewhen the last home invasion occurred. Their presence in the vehicle, alone, wasinsufficient to qualify them as accomplices (see People v Tucker, 72 NY2d 849,850 [1988]; compare People v Sweet, 78 NY2d 263, 265-266 [1991]), and wefind no error in County Court's refusal to charge the jury as such.
In any event, even if the evidence adduced at trial created a factual question as toLewis's and Anthony-Lewis's participation requiring County Court to provide the jurywith an accomplice-in-fact instruction, the failure to do so would have been harmlesserror, as there is ample evidence corroborating their testimony which "tends to connect. . . defendant with the commission of the crime[s] in such a way as mayreasonably satisfy the jury that [they were] telling the truth" (People v Reome, 15 NY3d188, 192 [2010]; see Peoplev Reed, 115 AD3d 1334, 1336 [2014]; compare People v Sage, 23NY3d 16, 27). Among other things, defendant's presence in the vehicle, the recovery of the gunsfrom Bost's waistband, the identification of defendant's jacket by King, the in-courtidentification of defendant by the Chrapowitzkys, David Chrapowitzky's identification ofthe mask found in defendant's vehicle, and the recovery of the stolen items fromdefendant's residence sufficiently corroborated the testimony of Lewis andAnthony-Lewis (see People vJones, 111 AD3d 1148, 1150 [2013]).
To the extent not specially addressed herein, defendant's remaining contentions havebeen considered and are unavailing.
McCarthy, Rose and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Krapf also testified thathis partner issued uniform traffic tickets to defendant. While defendant points to theabsence of such tickets from the record, we note that, even if no tickets had been issued,it would not have "render[ed] the otherwise lawful traffic stop illegal" (People v Ross, 106 AD3d1194, 1195 [2013], lv denied 22 NY3d 1090 [2014]).
Footnote 2:Samascott was not homewhen the burglary occurred.
Footnote 3:There is nothing in therecord indicating the disposition of these charges.