| People v Godallah |
| 2015 NY Slip Op 07864 [132 AD3d 1146] |
| October 29, 2015 |
| Appellate Division, Third Department |
[*1](October 29, 2015)
| The People of the State of New York, Respondent, vLuvadollar Godallah, Appellant. |
M. Joe Landry, Schenectady, for appellant, and appellant pro se.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Schenectady County(Drago, J.), rendered August 28, 2012, upon a verdict convicting defendant of the crimesof assault in the second degree (six counts), burglary in the first degree (six counts) andendangering the welfare of a child.
Defendant was charged in a 22-count indictment with various crimes stemming froma home invasion that occurred on January 26, 2011 at an apartment located in the City ofSchenectady, Schenectady County. Living in the apartment were Melissa Columbus andher infant child, her brother, Brad Columbus, and her boyfriend, Anthony Nieves. Duringthe home invasion, each of the three adult residents were stabbed. Melissa Columbusmanaged to call 911 during the ordeal and when the police arrived, they discovered andarrested James Tedeschi, defendant's roommate. Defendant was picked up approximatelythree hours later. After a jury trial, defendant was found guilty of assault in the seconddegree (six counts), burglary in the first degree (six counts) and endangering the welfareof a child. The People submitted a persistent violent felony offender statement pursuantto CPL 400.15 (2). Thereafter, County Court sentenced defendant, as a persistent violentfelony offender, to an aggregate prison term of 24 years to life. Defendant nowappeals.
At trial, the evidence included testimony by Tedeschi, who was also charged butpleaded guilty to the charges in the indictment. Tedeschi testified that it was defendant'sidea to go to the apartment to steal money and drugs. Tedeschi explained that to disguisethemselves before entering the apartment, he wore a hooded sweatshirt, hat and ski maskand that defendant [*2]wore a "face thing[ ]" and "somebig red sunglasses." Tedeschi testified that, once they were in the apartment, someonejumped on him and, as he was knocked to the floor, he observed defendant "strik[e]downwards" towards the person on top of him. Tedeschi testified that, as he got up fromthe floor, he saw blood "everywhere." Tedeschi identified certain voices in a police audiorecording of the event as his and defendant's.
Melissa Columbus testified that at 4:54 a.m. on January 26, 2011, she was awakenedby the sound of people in her apartment. She called for Nieves, who was sleeping in theroom with her, urged him to get up, and then called the police. Nieves testified that heran out of the room and jumped on one of the intruders. Melissa Columbus beganscreaming to wake Brad Columbus. She testified that there were two men in theapartment, one was white, the other was black, taller and dressed in black. The tallerintruder came into her bedroom, grabbed her phone and began demanding to knowwhere "the bread" was. She testified that he threw her into the dining room, where shecould see Nieves and Brad Columbus on the floor, both covered in blood. When she gotup to check on her child, the taller man stabbed her in the thigh. Melissa Columbusexplained that as she was being stabbed, she noticed that the taller intruder was wearing ahat with a ski mask and a pair of sunglasses, and that he had a "mole, a beauty mark [or]something" on his face. She testified that when the police arrived, the taller man jumpedout of the window.
Nieves testified that he noticed only that one of the two intruders was tall and"lanky." Brad Columbus testified that he knew Tedeschi and that he had previously met aman named "Luvly" at Tedeschi's home, who was taller than both he and Tedeschi andwho had two small tattoos below one eye. On the night of the invasion, Brad Columbuspulled Tedeschi's mask off and recognized him. He recalled that the taller man, who waswearing a mask and had a tattoo on his face, stabbed him in the leg and in the back of thehead. He also testified that the taller man was shouting and asking for "bread" and"weed."
Keith Lawyer, a police officer, testified that when he arrived at the apartment shortlyafter 6:00 a.m. on the morning of the incident, Melissa Columbus described Tedeschi'saccomplice as wearing a mask and having tattoos that resembled teardrops under oneeye. Lawyer also testified that Tedeschi gave him the address of the apartment that heshared with defendant, advised that defendant was named "Luvy or Luvly" and providedLawyer with the name of defendant's girlfriend. When Lawyer arrived at Tedeschi'sapartment, the girlfriend was there and she revealed that defendant's brother, RaheemSanford, was also in the apartment. Lawyer questioned Sanford, who was later arrestedon an unrelated charge. He also asked defendant's girlfriend and another woman whowas at the apartment to accompany him to the police station for questioning. Lawyertestified that while en route, approximately one hour later and one mile from Tedeschi'sapartment, he observed a "taller black male" walking on the side of the road, noticed thatthe pedestrian resembled Sanford, and when he asked the two women in the backseatwhether it was defendant, both put their heads down but did not otherwise respond.
Lawyer testified that when he pulled over and approached defendant, he noticed thetattoos under one eye that were not teardrops but dollar signs. Defendant confirmed,when asked, that he was Luvly. Lawyer advised defendant that his name had been raisedin an investigation with regard to the home invasion, but defendant claimed to have noknowledge of the event. Next, Lawyer explained that he asked defendant to interlace hisfingers behind his head to facilitate a pat down and that, as a result, an interior pocket ondefendant's jacket was exposed and Lawyer observed a knife. Lawyer placed handcuffson defendant and waited for an evidence officer to arrive on the scene. The jury alsoheard expert testimony that forensic testing revealed Nieves' DNA on theknife.
[*3] Initially, we reject defendant'sclaim that Lawyer did not have probable cause to arrest him and that County Courtshould have held a Mapp hearing. Generally, a motion to suppress evidence must"state the ground or grounds of the motion and must contain sworn allegations of fact,whether of the defendant or of another person or persons, supporting such grounds"(CPL 710.60 [1]). The trial court "may summarily deny the motion if . . .[t]he motion papers do not allege a ground constituting legal basis for the motion [or ifthe] sworn allegations of fact do not as a matter of law support the ground alleged" (CPL710.60 [3] [a], [b]). "[T]he sufficiency of [the] defendant's factual allegations should beevaluated by (1) the face of the pleadings, (2) assessed in conjunction with the context ofthe motion, and (3) defendant's access to information" (People v Mendoza, 82NY2d 415, 426 [1993]; seePeople v Atkinson, 111 AD3d 1061, 1063 [2013]; People v Vanness, 106 AD3d1265, 1265-1266 [2013], lv denied 22 NY3d 1044 [2013]).
Here, defendant made his motion for a Mapp hearing prior to the jury trial,but after he had received the indictment and a witness list indicating that Tedeschi wouldbe testifying. Notwithstanding this knowledge, his motion did not include any factualallegations to support his claim that the police lacked probable cause to stop him as hewas walking down the street. Notably, in his motion, defendant did not allege that he hada knife when he was subsequently searched. Instead, he relied on certain discrepanciesbetween the description the police had been given and his appearance. In this context, wefind that County Court properly decided defendant's motion without a hearing(see CPL 710.60 [3] [b]; People v Mendoza, 82 NY2d at 426; Peoplev Vanness, 106 AD3d at 1265-1266). Moreover, we discern no error in the court'srefusal to suppress evidence of the knife. "Where a police officer reasonably suspects'that a particular person has committed . . . a felony or misdemeanor, theCPL authorizes a forcible stop and detention of that person' " (People v Stroman, 107 AD3d1023, 1023 [2013], lv denied 21 NY3d 1046 [2013], quoting People vDe Bour, 40 NY2d 210, 223 [1976]). Based on the physical description of defendant,the resemblance to his brother, and the reaction by the two women in the backseat,Lawyer had a reasonable suspicion that defendant was the person who had committed thehome invasion and could reasonably believe that it was necessary to stop defendant andto pat him down to determine whether he was in possession of a dangerous weapon (see People v Mitchell, 129AD3d 1319, 1320 [2015]; People v Issac, 107 AD3d 1055, 1057 [2013]; People vStroman, 107 AD3d at 1024).
Next, based on his claim that Tedeschi's testimony was not sufficiently corroborated,defendant argues that his convictions were not supported by legally sufficient evidence.Generally, the testimony of an accomplice cannot form the basis of a conviction unless itis supported "by corroborative evidence tending to connect the defendant with thecommission of such offense" (CPL 60.22 [1]). The required "corroborative evidence. . . need not be powerful in itself . . .[,] show the commissionof the crime [or] . . . show that defendant was connected with thecommission of the crime. It is enough if it tends to connect the defendant with thecommission of the crime in such a way as may reasonably satisfy the jury that theaccomplice is telling the truth" (People v Reome, 15 NY3d 188, 191-192 [2010] [internalquotation marks and citation omitted]). Corroborative evidence sufficiently connects thedefendant to the crime if, when considered "with the accomplice's testimony, [it] makes itmore likely that the defendant committed the offense, and thus tends to connect him [orher] to it" (id. at 194).
In our view, there was sufficient corroborative evidence to connect defendant to thecommission of the crimes. Tedeschi's testimony was corroborated by Melissa Columbusand Brad Columbus, who both confirmed certain details of the incident and, while theymay have been inconsistent with regard to defendant's facial tattoo and whether there wasa third person involved, identified defendant as an intruder in the apartment. Theirtestimony, together with the DNA evidence on the knife, was enough to permit the juryto conclude that Tedeschi was telling [*4]the truth(see People v Reome, 15 NY3d at 195).
Defendant also argues that County Court erred in not allowing his expert, a policedetective with 24 years of experience, to testify with regard to crime scene investigations.Generally, "the admissibility and limits of expert testimony lie primarily in the sounddiscretion of the trial court" (People v Lee, 96 NY2d 157, 162 [2001]; see People v Salce, 124 AD3d923, 926 [2015], lv denied 25 NY3d 1207 [2015]). In exercising itsdiscretion, the trial court must "determine when jurors are able to draw conclusions fromthe evidence based on their day-to-day experience, their common observation and theirknowledge, and when they would be benefited by the specialized knowledge of an expertwitness" (People v Cronin, 60 NY2d 430, 433 [1983]). Necessarily, "[a]s part ofthis process, the purpose for which the expert testimony is being offered must beexamined" (People v Brown, 97 NY2d 500, 505 [2002]).
Defendant argued that the proposed witness would testify with regard to standardinvestigative procedures in general and, specifically, with regard to errors made by theSchenectady Police Department. County Court determined that defendant's experttestimony would consist of general allegations that the investigation was inadequate andthat such opinion was not outside of the jury's general knowledge. Under the facts andcircumstances of this case (see People v Lee, 96 NY2d at 163; People vSalce, 124 AD3d at 926), County Court did not abuse its discretion in precludingsuch testimony.
Next, we find that County Court properly imposed the DNA data bank feenotwithstanding that defendant had paid the fee in the past following a prior conviction(see Penal Law § 60.35). Finally, because the record indicates that,at sentencing, counsel confirmed that defendant was not controverting any of theallegations set forth in the People's persistent violent felony offender statement(see CPL 400.15 [2]), defendant's claim that County Court improperly sentencedhim as a persistent violent felony offender without a hearing is not preserved for ourreview.
Peters, P.J., Lahtinen and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.