| People v Lara |
| 2015 NY Slip Op 05890 [130 AD3d 463] |
| July 7, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Jason Lara, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Marisa K. Cabrera ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Christopher P. Marinelli ofcounsel), for respondent.
Judgment, Supreme Court, New York County (Lewis Bart Stone, J., at preclusionmotion; Marcy L. Kahn, J., at suppression hearing; Laura A. Ward, J., at jury trial andsentencing), rendered July 31, 2012, convicting defendant of burglary in the seconddegree, and sentencing him, as a persistent violent felony offender, to a term of 18 yearsto life, unanimously modified, on the law, to the extent of vacating the sentence andremanding for new persistent violent felony offender proceedings and resentencing inaccordance with this decision, and otherwise affirmed. Order, same court and Justice,entered December 2, 2013, which denied defendant's CPL 440.20 motion to set aside hissentence, unanimously reversed, on the law, and the motion granted as indicatedabove.
The verdict was based on legally sufficient evidence and was not against the weightof the evidence (see People vDanielson, 9 NY3d 342, 348-349 [2007]). A reasonable interpretation of thevictim's testimony, taken together with defendant's own trial testimony about theincident, supports an inference that defendant made an unlawful entry into the victim'sapartment that was separate from defendant's prior consensual entry. The jury could havereasonably concluded that defendant went out of the apartment, but struggled with thevictim in the doorway in an effort to reenter, and that defendant intruded into theapartment to an extent that satisfied the unlawful entry element of burglary (seePeople v King, 61 NY2d 550, 555 [1984]). The jury could also have found, based ondefendant's violent and unlawful course of conduct, and without resort to speculation,that the defendant reentered with intent to commit a crime in the apartment.
The court's charge, viewed as a whole, adequately conveyed the proper legalstandards relating to the elements of burglary and the jury's evaluation of witnesscredibility (see People vDrake, 7 NY3d 28, 33-34 [2006]), and the court's refusal to add languagesuggested by defendant did not deprive defendant of a fair trial. The court sufficientlyexplained the criminal intent element of burglary, and elaboration on this point would nothave been helpful to the jury. The court's thorough instructions on assessing thecredibility of witnesses listed interest or lack of interest as only one of many factors toweigh. Although the court omitted the specific [*2]language that the jury was not required to reject thetestimony of an interested witness or accept that of a disinterested witness, there is nopossibility that the jurors, after hearing the entire charge, could have been misled on thisissue.
The court properly denied defendant's motion to preclude identification testimony onthe ground of lack of CPL 710.30 (1) (b) notice. The chain of events leading directly tothe crime began when defendant and the victim met in a store and agreed to go to thevictim's apartment. Shortly after the crime, the police showed the victim a storesurveillance videotape depicting both defendant and the victim. Although the video onlyshowed the very beginning of the events leading up to the crime, rather than the crimeitself, the victim's viewing of the video did not constitute an identification requiringnotice, because the victim, who was depicted together with defendant in the relevantportion, was "simply ratifying the events as revealed in the videotape" rather thanselecting defendant as the perpetrator (see People v Gee, 99 NY2d 158, 162[2002]). Moreover, although the video was played for the jury, the People neitherintended to offer it as evidence of an identification, nor actually did so.
We have considered defendant's various arguments regarding the suppressiondecision, and we find no basis for reversal.
Defense counsel rendered ineffective assistance at defendant's persistent felonyoffender adjudication by failing to ascertain that, in violation of People v Catu (4 NY3d242 [2005]), defendant was not advised about postrelease supervision at the time ofa prior plea, and by failing to litigate whether the Catu violation rendered theprior conviction unconstitutional for predicate felony purposes (see People v Fagan, 116 AD3d451 [2014]). In the present procedural posture, as in Fagan, we do not decidethe underlying issue of whether a Catu-violative conviction may serve as apredicate felony (see People vAgard, 127 AD3d 602 [1st Dept 2015]). We only hold that defendant is entitledto a hearing on the issue at which counsel can fully develop a record and arguments.
Defendant's excessive sentence claim is academic because we are ordering a plenarysentencing proceeding. Concur—Tom, J.P., Andrias, Feinman, Gische andKapnick, JJ.