| People v Clark |
| 2016 NY Slip Op 03330 [138 AD3d 1449] |
| April 29, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDonald Clark, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of counsel), fordefendant-appellant.
Donald Clark, defendant-appellant pro se.
Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia,A.J.), rendered January 6, 2014. The judgment convicted defendant, upon a jury verdict,of burglary in the third degree (two counts) and criminal possession of stolen property inthe fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice and on the law by reducing the conviction ofcriminal possession of stolen property in the fourth degree to criminal possession ofstolen property in the fifth degree and by vacating the sentence imposed on count three ofthe indictment and imposing a definite sentence of one year and as modified thejudgment is affirmed.
Memorandum: Defendant appeals from a judgment entered upon a jury verdictconvicting him of two counts of burglary in the third degree (Penal Law§ 140.20) and one count of criminal possession of stolen property in thefourth degree (§ 165.45 [5]). Defendant failed to preserve for our reviewhis contention that his conviction of one of the counts charging burglary in the thirddegree and the count charging criminal possession of stolen property in the fourth degreeis not supported by legally sufficient evidence (see People v Gray, 86 NY2d 10,19 [1995]). We nevertheless exercise our power to review that contention as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]; People v Morgan, 111 AD3d1254, 1256 [2013]). We reject defendant's contention with respect to the burglarycount. Defendant was identified by two witnesses as one of two men who were seenwheeling two bicycles down a driveway and placing them in the bed of a pickup truckbefore walking down the street, looking into driveways as they went. The two witnessesobserved one of the men, whom they identified as defendant during a showup procedurebased upon his stature and his clothing, return to the vicinity of the truck carrying severalitems. As a police car approached, in response to the 911 call made by one of thewitnesses, the man placed the three items next to a tree. Defendant was apprehended inproximity to those items, and the items were identified by the owners as having beenremoved from their garage. We conclude that, viewing the evidence in the light mostfavorable to the People, "there is sufficient evidence to support the jury's inference" thathe unlawfully entered a building with the intent to commit a crime therein (People v Gordon, 23 NY3d643, 649 [2014]; see generally People v Bleakley, 69 NY2d 490, 495[1987]).
We reject defendant's further contention that the evidence with respect to hisknowing possession of the stolen pickup truck is legally insufficient to support theconviction of criminal possession of stolen property in the fourth degree. Viewing theevidence in the light most favorable to the People, i.e., that defendant was observedloading stolen property into a truck that had been stolen within the prior three hours,there is a valid line of reasoning and permissible inferences to lead a rational person toconclude that defendant knew that the truck was stolen (see [*2]generally Gordon, 23 NY3d at 649; Bleakley,69 NY2d at 495). We agree with defendant, however, that the evidence is legallyinsufficient to support the conviction of that crime because as the People correctlyconcede, there was no evidence regarding the value of the truck, a requisite element ofthat offense (see generally Morgan, 111 AD3d at 1256-1257). We furtherconclude, however, that the evidence is legally sufficient to support the lesser includedoffense of criminal possession of stolen property in the fifth degree (Penal Law§ 165.40), and we therefore modify the judgment accordingly (seeCPL 470.15 [2] [a]; People v Pallagi [appeal No. 1], 91 AD3d 1266, 1270[2012]). Because defendant has served the maximum one-year sentence for that offense(see Penal Law §§ 70.15 [1]; 70.35), there is no need to remitthe matter to Supreme Court for resentencing (see People v McKinney, 91 AD3d 1300, 1300 [2012]). Inthe interest of judicial economy, we further modify the judgment by vacating thesentence imposed on count three and by imposing the maximum sentence allowed forclass A misdemeanor, i.e., a definite sentence of one year (see id.). Contrary todefendant's contention, viewing the elements of the crime of burglary in the third degreeas charged to the jury (seePeople v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdictwith respect to those counts is not against the weight of the evidence (see generallyBleakley, 69 NY2d at 495).
Defendant failed to preserve for our review his contention that he was denied a fairtrial by prosecutorial misconduct during summation (see People v Smith, 32 AD3d 1291, 1292 [2006], lvdenied 8 NY3d 849 [2007]) and, in any event, that contention is without merit.Although the People correctly concede that certain remarks that denigrated the defensewere improper, and we reiterate that we do not condone that type of conduct (see People v Gibson, 134AD3d 1512, 1513 [2015]), we nevertheless conclude that neither those remarks, northe other alleged instances of misconduct, were so egregious as to deny defendant a fairtrial (see People v McAvoy,70 AD3d 1467, 1468 [2010], lv denied 14 NY3d 890 [2010]; cf. People v Jones, 134 AD3d1588, 1589 [2015]).
We reject defendant's contention in his main and pro se supplemental briefs that hewas denied effective assistance of counsel. We conclude that defendant failed to sustainhis burden of establishing "that his attorney 'failed to provide meaningful representation'that compromised 'his right to a fair trial' " (People v Pavone, 26 NY3d 629, 647 [2015]). Indeed,viewing defense counsel's performance in its totality, as we must (see People vBaldi, 54 NY2d 137, 147 [1981]), we conclude that defendant received meaningfulrepresentation (see generallyPeople v Wragg, 26 NY3d 403, 409 [2015]). To the extent that defendant raisescontentions regarding alleged instances constituting ineffective assistance of counsel inhis pro se supplemental brief that are outside the record on appeal, those contentionsmust be raised by way of a motion pursuant to CPL 440.10 (see People v Cooper, 134AD3d 1583, 1586 [2015]). We have reviewed the remaining contentions containedin defendant's pro se supplemental brief and conclude that none requires reversal orfurther modification of the judgment.
We reject defendant's further contention in his main brief that the court erred indenying his motion pursuant to CPL 330.30 (3) to set aside the verdict based upon newlydiscovered evidence, i.e., a posttrial statement by the Erie County District Attorney that aperson who also was apprehended on the night of these crimes and identified by thewitnesses as one of the men seen with the bicycles was exonerated. It is undisputed thatthe prosecutor, an assistant district attorney, stated during his summation that the personwas "probably guilty" but explained that there was not sufficient evidence to charge himwith these crimes. Even assuming, arguendo, that the District Attorney's remark wasadmissible in a new trial (seegenerally People v Backus, 129 AD3d 1621, 1623 [2015]), we conclude thatdefendant failed to establish that the evidence would probably change the result if a newtrial was granted or that the evidence was material, not cumulative and did not merelyimpeach or contradict the record evidence (see id.; cf. People v Madison, 106AD3d 1490, 1492-1494 [2013]). Finally, the concurrent terms of imprisonmentimposed on the burglary counts are not unduly harsh or severe. Present—Smith,J.P., DeJoseph, NeMoyer, Troutman and Scudder, JJ.