| People v Garcia |
| 2015 NY Slip Op 06450 [131 AD3d 732] |
| August 6, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vAngel Garcia, Appellant. |
Catherine A. Barber, Albany, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
McCarthy, J. Appeal from a judgment of the County Court of Ulster County(Williams, J.), rendered October 18, 2013, upon a verdict convicting defendant of thecrime of burglary in the second degree.
Defendant was indicted for the crime of burglary in the second degree in relation tohis alleged involvement in the burglary of a residence in Ulster County, during whichapproximately $56,000 was stolen. Defendant's alleged accomplice, Eric Fehring,implicated him in the burglary during an interview with police after a traffic stop on theday of the incident. Police thereafter verified Fehring's story by visiting the victim'shouse and conducting a controlled phone call between defendant and Marcella Battista,Fehring's girlfriend at the time. Defendant was then arrested without a warrant five daysafter the burglary. Following a jury trial, defendant was convicted as charged, sentencedto a prison term of 15 years, to be followed by five years of postrelease supervision, andordered to pay restitution in the amount of $27,500. Defendant now appeals.
Defendant contends that his conviction is not supported by legally sufficientevidence and is against the weight of the evidence. As is relevant here, the People wererequired to establish that defendant knowingly entered a dwelling with the intent tocommit a crime therein (see Penal Law § 140.25 [2]). According toFehring, he and defendant discussed burglarizing the victim's home while at Battista'shouse on the day before the burglary. They then drove to the victim's house the followingmorning, entered through a broken window and took large amounts [*2]of cash and a locked, blue safe containing more cash.Although "[a] defendant may not be convicted solely on the basis of accomplicetestimony that lacks the support of 'corroborative evidence' " (People v Rodriguez, 121 AD3d1435, 1439 [2014], lv denied 24 NY3d 1122 [2015], quoting CPL 60.22[1]), sufficient evidence was adduced at trial to "harmonize . . . [Fehring]'snarrative so as to provide the necessary corroboration" (People v Caban, 5 NY3d143, 155 [2005] [internal quotation marks and citation omitted]; see People v Miles, 119 AD3d1077, 1079 [2014], lv denied 24 NY3d 1003 [2014]; People v Gilbo, 52 AD3d952, 953 [2008], lv denied 11 NY3d 788 [2008]). Battista's testimonycorroborated Fehring's account of his conversation with defendant on the day before theburglary. Video footage from a gas station shows defendant and Fehring together on themorning of the burglary, and Battista testified that she saw them together that afternoon.Defendant also made admissions regarding the location of the victim's house during acontrolled call with Battista, a recording of which was played for the jury. Police foundlarge amounts of cash and various goods on Fehring's person on the day of the burglary.Additionally, several days later, police recovered the blue safe from a lake in the areawhere Fehring testified that he and defendant had driven and disposed of the safe in abody of water. We therefore find that the People provided " 'enoughnonaccomplice evidence to assure that the accomplice[ ] . . . offeredcredible probative evidence' " (People v Miles, 119 AD3d at 1079,quoting People v Breland, 83 NY2d 286, 293 [1994]) that "tend[ed] to connectdefendant to the crime charged" (People v Besser, 96 NY2d 136, 143-144 [2001][internal quotation marks and citation omitted]; see People v Brown, 62 AD3d 1089, 1090 [2009], lvdenied 13 NY3d 742 [2009]). Further, the jury was entitled to credit Fehring'stestimony that defendant jointly participated in the burglary and, deferring to thosecredibility determinations, we do not find defendant's conviction to be against the weightof the evidence (see People v Brown, 62 AD3d at 1091).
Contrary to defendant's contention on appeal, County Court correctly found that thepolice had probable cause to arrest him. "Probable cause does not require proof sufficientto warrant a conviction beyond a reasonable doubt but merely information sufficient tosupport a reasonable belief that an offense has been . . . committed by theperson arrested" (People vGreen, 127 AD3d 1473, 1473 [2015] [internal quotation marks and citationsomitted]; accord People vShulman, 6 NY3d 1, 25 [2005], cert denied 547 US 1043 [2006]). Here,such probable cause was established by Fehring's implication of defendant in theburglary, his ability to lead law enforcement to the victim's house and the informationprovided by Fehring concerning the hours leading up to the burglary (see People vBerzups, 49 NY2d 417, 427 [1980]; People v Green, 127 AD3d at 1474; People v Nicholas, 118 AD3d1183, 1187 [2014], lv denied 24 NY3d 1121 [2015]). Further, defendant'ssubsequent arrest by his parole officer, who was informed of the foregoing informationby the investigating officer, was proper under the fellow officer rule (see People vRamirez-Portoreal, 88 NY2d 99, 113-114 [1996]; see also People v Porter, 101AD3d 44, 47 [2012], lv denied 20 NY3d 1064 [2013]).
Defendant's argument that County Court was required to instruct the jury thatBattista was an accomplice, and that her testimony was thus subject to the samecorroboration requirements as that of Fehring, is unpreserved and, in any event, withoutmerit. Given that the only evidence tying Battista to the burglary was her presence for theinitial conversation between defendant and Fehring, there was no evidence that she "tookpart in the preparation or perpetration of the [burglary] with intent to assist therein" (People v Weaver, 52 AD3d138, 140 [2008] [internal quotation marks and citation omitted], revd on othergrounds 12 NY3d 433 [2009]; see People v Moyer, 75 AD3d 1004, 1005 [2010];compare People v Adams, 307 AD2d 475, 476-477 [2003], lv denied 1NY3d 566 [2003]). Defendant's related argument that he was deprived of the effectiveassistance of counsel due to his attorney's failure to request a corroboration instructionwith respect to Battista's testimony thus also fails, as "counsel cannot be [*3]faulted for failing to raise an issue that has little or nochance of success" (People vMorrison, 127 AD3d 1341, 1345 [2015] [internal quotation marks and citationomitted]; see People vStultz, 2 NY3d 277, 287 [2004]; People v Moyer, 75 AD3d at 1007).Defendant also asks us to employ "the clarity of hindsight" to determine how counsel'scross-examination of Fehring "might have been more effective" (People v Thomas, 105 AD3d1068, 1071 [2013] [internal quotation marks and citation omitted], lv denied21 NY3d 1010 [2013]), which we decline to do. Moreover, defendant has not met his"high burden" (People v Hobot, 84 NY2d 1021, 1022 [1995]) of"demonstrat[ing] the absence of strategic or other legitimate explanations" for theremainder of counsel's alleged shortcomings (People v Thomas, 105 AD3d at1071 [internal quotation marks and citation omitted]; accord People v Baker, 14 NY3d 266, 270-271[2010]).
Finally, while defendant received the maximum sentence permitted by law for hisconviction of burglary in the second degree (see Penal Law§§ 70.02 [1] [b]; [3] [b]; 140.25), we find no abuse of discretion byCounty Court in light of his extensive criminal history (see People v Fomby, 119AD3d 1293, 1293 [2014]; People v Edwards, 96 AD3d 1089, 1092 [2012], lvdenied 19 NY3d 1102 [2012]). Additionally, the fact that Fehring received a lessersentence is not a compelling reason to reduce defendant's sentence; Fehring, unlikedefendant, entered a plea agreement and, pursuant to it, testified against defendant(see generally People v Selikoff, 35 NY2d 227, 234 [1974], cert denied419 US 1122 [1975]; People vMorrison, 71 AD3d 1228, 1230 [2010], lv denied 15 NY3d 754 [2010];People v Manley, 70 AD3d1125, 1125 [2010]).
Peters, P.J., Egan Jr. and Rose, JJ., concur. Ordered that the judgment isaffirmed.