| People v Marsden |
| 2015 NY Slip Op 06260 [130 AD3d 945] |
| July 22, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Ricardo Marsden, Appellant. |
Virginia Boccio, Farmingdale, N.Y., for appellant, and appellant pro se.
Madeline Singas, Acting District Attorney, Mineola, N.Y. (Tammy J. Smiley andCristin N. Connell of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County(Berkowitz, J.), rendered August 8, 2008, convicting him of murder in the second degree(two counts), burglary in the first degree (two counts), attempted robbery in the firstdegree (two counts), attempted robbery in the second degree, criminal possession of aweapon in the second degree, and criminal possession of a weapon in the third degree,upon a jury verdict, and imposing sentence. The appeal brings up for review the denial,after a hearing pursuant to a stipulation in lieu of motions (LaPera, J.), of the suppressionof the defendant's statements to law enforcement officials. By decision and order datedOctober 18, 2011, this Court remitted the matter to the County Court, Nassau County, tohear and report on the defendant's motion pursuant to CPL 330.30 (2) to set aside theverdict based upon allegations of juror misconduct, and the appeal was held in abeyancein the interim (see People vMarsden, 88 AD3d 909 [2011]). The County Court, Nassau County, has nowfiled its report.
Ordered that the judgment is modified, on the facts, by vacating the conviction ofmurder in the second degree under the first count of the indictment and the convictionsof burglary in the first degree (two counts), vacating the sentences imposed thereon, anddismissing those counts of the indictment; as so modified, the judgment is affirmed.
In September 2006, the girlfriend of Peter Jones found him lying dead in his house.Based upon Jones' death and the circumstances surrounding his death, the defendant wasconvicted, after a jury trial, of two counts of murder in the second degree (felonymurder), two counts of burglary in the first degree, two counts of attempted robbery inthe first degree, attempted robbery in the second degree, and criminal possession of aweapon in the second and third degrees. One count of murder in the second degree(felony murder) was predicated upon his commission or attempted commission ofburglary, and the other count of murder in the second degree (felony murder) waspredicated upon his commission or attempted commission of robbery.
The defendant thereafter moved pursuant to CPL 330.30 (2) to set aside the verdictbased upon allegations of juror misconduct. The defendant's motion was predicated, inpart, upon an affidavit from juror number eight, which contained sworn allegations ofoutside influence prior to and during deliberations. That motion was denied without ahearing. In a prior decision and [*2]order, this Courtremitted the matter to the County Court, Nassau County, to hear and report on the factsunderlying the defendant's motion (see People v Marsden, 88 AD3d 909 [2011]). The CountyCourt has now filed its report.
When determining a motion to set aside a verdict based upon juror misconduct, "thefacts must be examined to determine the nature of the material placed before the jury andthe likelihood that prejudice would be engendered" (People v Brown, 48 NY2d388, 394 [1979]; see People v Maragh, 94 NY2d 569, 573-574 [2000]). "Absenta showing of prejudice to a substantial right, proof of juror misconduct does not entitle adefendant to a new trial" (People v Lemay, 69 AD3d 757, 758 [2010]; seeCPL 330.30 [2]; People vDavis, 86 AD3d 59, 64 [2011]).
Here, at the hearing on remittal, juror number eight testified that another juroradmitted to reading a news article during the trial which reported on events that occurredat the trial itself. Juror number eight further testified that she heard another juror state,during deliberations, that the defendant had been "causing a lot of trouble in Queens" andhad fought with "corrections officers" while in jail. There was no indication as to themanner in which the defendant was causing "trouble" in Queens, and no evidence as tohow many jurors heard this information. Indeed, two other jurors who testified at thehearing indicated that they had not heard the information, which, moreover, did not relateto the facts of the present case or the defendant's guilt or innocence of the chargedcrimes. Under the circumstances, the defendant failed to demonstrate a likelihood ofprejudice to a substantial right so as to warrant setting aside the verdict (see CPL330.30 [2]; 330.40 [2] [g]; People v Testa, 61 NY2d 1008 [1984]; People v Heidgen, 87 AD3d1016, 1027 [2011]; People v Lemay, 69 AD3d at 758; People v McDonald, 40 AD3d1125 [2007]; see also People v Sullivan, 167 AD2d 564 [1990]; cf. People v Giarletta, 72AD3d 838 [2010]; People vRomano, 8 AD3d 503, 504 [2004]). Accordingly, the County Court properlydenied the defendant's motion to set aside the verdict.
Contrary to the defendant's contention, the County Court properly deniedsuppression of statements he made to law enforcement officials after he was advised of,and waived, his Miranda rights (see Miranda v Arizona, 384 US 436[1966]). Considering the totality of the circumstances, the defendant's statements werevoluntary (see CPL 60.45; People v Casassa, 49 NY2d 668, 673 [1980];People v Solorzano, 94AD3d 1153, 1154 [2012]; People v Gega, 74 AD3d 1229 [2010]). Further, thedefendant's contention that his statements should have been suppressed because theywere not recorded on video is without merit (see People v Toppin, 26 AD3d 398 [2006]; see also People v Thomas, 90AD3d 1080 [2011]; Peoplev Cass, 79 AD3d 768, 769 [2010], affd 18 NY3d 553 [2012]).
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we essentially sitas the "thirteenth juror" and "decide[ ] which facts were proven at trial" (People vDanielson, 9 NY3d at 348; see People v Ross, 104 AD3d 878, 879 [2013]). "[W]eightof the evidence review is not limited to issues of credibility" (People v Ross, 104AD3d at 879; see People v Danielson, 9 NY3d at 350). "Rather, 'in conducting itsweight of the evidence review, a court must consider the elements of the crime, for evenif the prosecution's witnesses were credible their testimony must prove the elements ofthe crime beyond a reasonable doubt' " (People v Ross, 104 AD3d at 879,quoting People v Danielson, 9 NY3d at 349).
Here, the People failed to prove beyond a reasonable doubt that the defendantcommitted burglary in the first degree and, concomitantly, failed to prove the defendant'sguilt of murder in the second degree (felony murder) under the first count of theindictment, which was predicated upon his commission or attempted commission ofburglary. To prove the defendant's guilt of burglary in the first degree, the People wererequired to prove, among other things, that the defendant "knowingly enter[ed] orremain[ed] unlawfully in a dwelling" (Penal Law § 140.30). "A person'enters or remains unlawfully' in or upon premises when he is not licensed or privilegedto do so" (Penal Law § 140.00 [5]). "In general, a person is 'licensed orprivileged' to enter private premises when he [or she] has obtained the consent of theowner or another whose relationship to the premises gives him [or her] authority to issuesuch consent" (People v Graves, 76 NY2d 16, 20 [1990]; see People v Aveni, 100 AD3d228, 242 [2012]; People v McCargo, 226 AD2d 480 [1996]).
[*3] There was no evidence produced at trial as to how thedefendant, who was acquainted with Jones, entered Jones' house. An investigating policedetective testified that there was no evidence of forced entry into the house, and neitherof two statements the defendant gave to the police, admitting that he was in Jones' housewhen Jones was killed, indicate that he entered the premises unlawfully. Under thesecircumstances, since the People failed to introduce any evidence as to how the defendantgained entry to Jones' house, they failed to prove that the defendant entered the houseunlawfully. Accordingly, the defendant's convictions of burglary in the first degree andhis conviction of murder in the second degree under the first count of the indictmentmust be vacated and those counts of the indictment dismissed.
Upon our review of the record, however, we are satisfied that the remainingconvictions were not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]). Skelos, J.P., Chambers, Sgroi and Miller, JJ., concur.