| People v Turcotte |
| 2015 NY Slip Op 00573 [124 AD3d 1082] |
| January 22, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vPaul W. Turcotte, Appellant. |
Mark Schneider, Plattsburgh, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Clinton County(McGill, J.), rendered April 24, 2013, upon a verdict convicting defendant of the crimesof criminal possession of stolen property in the fourth degree, criminal possession ofstolen property in the fifth degree (three counts) and conspiracy in the fifth degree.
On April 16, 2012, a large amount of copper wire valued at $14,000 was stolen froma private contractor who was doing work at the United States Border Patrol facility inHighgate, Vermont. Thereafter, defendant and Bradley Robtoy, Vermont residents,traveled on April 18 and 24, 2012 to Clinton County, where they sold significantquantities of scrap copper to two separate businesses on each day. Investigations inVermont and Clinton County led police to defendant and Robtoy. Defendant waseventually indicted on one felony and one misdemeanor count of possessing stolenproperty arising from his activities on April 18, 2012, two misdemeanor counts ofpossessing stolen property regarding April 24, 2012, and one misdemeanor count ofconspiracy. A jury convicted defendant on all five counts. County Court sentenced himas a second felony offender to 2 to 4 years in prison on the felony count of criminalpossession of stolen property in the fourth degree and one-year sentences on each of thefour misdemeanors—three counts of criminal possession of stolen property in thefifth degree and one count of conspiracy in the fifth degree—all sentences to runconcurrently. Defendant appeals.
The verdict was supported by legally sufficient evidence. Criminal possession ofstolen [*2]property in the fifth degree is established byproving that defendant knowingly possessed stolen property and he intended to use it tobenefit himself or another who was not the owner (see Penal Law§ 165.40), and criminal possession of stolen property in the fourth degreeadds the relevant element that the stolen property had a value in excess of $1,000(see Penal Law § 165.45 [1]). The conspiracy count required proofthat defendant agreed with one or more persons to engage in or perform a felony(see Penal Law § 105.05 [1]), with the relevant felony being thecriminal possession of stolen property in the fourth degree.
Here, the People's proof included, among other things, that tire tracks matchingRobtoy's van were discovered where the copper wire was stolen in Vermont. PatrickPaquette, who rode with defendant and Robtoy during their April 18, 2012 trip toClinton County, testified that he observed a large amount of copper in Robtoy's van andthat he helped defendant and Robtoy scrap the copper in Clinton County. Paquetterecalled that, during their travels that day, Robtoy stated that the copper came from agovernment job site, Robtoy warned Paquette to keep quiet about the copper, anddefendant assured Robtoy that Paquette was "not a rat." Receipts from that day reflectthat over $1,700 was received for the scrapped copper. The job supervisor from wherethe wire was stolen stated that an unusual type of copper wire had been required by thegovernment contract, and he identified the wire that defendant and Robtoy had sold inClinton County as matching the stolen wire. The wire sold during the April 24, 2012 triphad been burned to remove identifying insulation. Vermont police discovered a burn pitat Robtoy's residence as well as copper wire that was the same as what had been stolenfrom the Highgate jobsite.
Although defendant acknowledged to police and testified at trial that he accompaniedRobtoy, he claimed not to have known that the copper wire had been stolen. Given thePeople's proof, this created a credibility issue for the jury. Viewed in the light mostfavorable to the People, the proof provided " 'a valid line of reasoning andpermissible inferences from which a rational jury could have found the elements of thecrime[s] proved beyond a reasonable doubt' " (People v Danielson, 9 NY3d342, 349 [2007], quoting People v Acosta, 80 NY2d 665, 672 [1993]).Moreover, to the extent that defendant argues that the verdict is against the weight of theevidence, our independent weighing and considering of the evidence, while accordingdeference to the jury's credibility determinations, reveals that such argument isunpersuasive (see People vRomero, 7 NY3d 633, 643-644 [2006]).
Defendant contends that it was error to deny his motion for a mistrial made after aVermont police officer made a brief reference to the fact that defendant had been arrestedin Vermont for the April 16, 2012 burglary. "[T]he decision to grant or deny a motion fora mistrial is within the trial court's discretion" (People v Wilson, 78 AD3d 1213, 1214 [2010], lvdenied 16 NY3d 747 [2011] [internal quotation marks and citation omitted]). CountyCourt had ruled in a pretrial Molineux motion that various evidence and conductby defendant and Robtoy relating to the April 16 theft of copper wire could beintroduced. The ruling did not, however, directly address the fact that defendant had beenarrested in Vermont for the burglary. Nonetheless, after defendant objected, the Peoplewithdrew the question and County Court immediately instructed the jury to disregard anyreference to the Vermont arrest. Under the circumstances, defendant was not deprived ofa fair trial and County Court did not abuse its discretion in denying the request for amistrial (see People vRedmon, 81 AD3d 752, 752-753 [2011], lv denied 16 NY3d 862[2011]; People v Walker, 225 AD2d 507, 507 [1996], lv denied 88 NY2d887 [1996]).
The remaining arguments do not require extended discussion. Defendant's assertionthat two of the misdemeanor counts (counts 3 and 4), for which he received concurrentsentences, are multiplicitous was not preserved for review and we decline to exercise ourinterest of justice jurisdiction as to such issue (see People v Thompson, 34 AD3d 931, 932 [2006], lvdenied 7 NY3d 929 [2006]; People v Morey, 224 AD2d 730, 731 [1996],lv denied 87 NY2d 1022 [1996]; [*3]see alsoPeople v Slishevsky, 97 AD3d 1148, 1151 [2012], lv denied 20 NY3d 1015[2013]). Contrary to defendant's contention, County Court did not prevent defensecounsel from making a full summation. The court acted within its discretion when itdirected counsel near the end of counsel's lengthy closing argument to stop beingrepetitive and, in fact, the record confirms that counsel had become repetitive (seegenerally Herring v New York, 422 US 853, 862 [1975]; People v Borukhova, 89 AD3d194, 224 [2011], lv denied 18 NY3d 881 [2012]). With regard to thepropriety of some of the People's comments during summation, defendant did notpreserve this issue (see People vJordan, 99 AD3d 1109, 1110 [2012], lv denied 20 NY3d 1012 [2013];People v Head, 90 AD3d1157, 1158 [2011]) and, in any event, "the challenged conduct 'was not so egregiousor pervasive as to deprive defendant of a fair trial' " (People v Reichel, 110 AD3d1356, 1364 [2013], lv denied 22 NY3d 1090 [2014], quoting People v Muniz, 93 AD3d871, 876 [2012], lv denied 19 NY3d 965 [2012]).
Peters, P.J., Garry, Rose and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.