| People v Barnes |
| 2016 NY Slip Op 03622 [139 AD3d 1371] |
| May 6, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJesse J. Barnes, Appellant. (Appeal No. 1.) |
Leanne Lapp, Public Defender, Canandaigua (Mary P. Davison of counsel), fordefendant-appellant.
R. Michael Tantillo, District Attorney, Canandaigua, for respondent.
Appeal from a judgment of the Ontario County Court (Frederick G. Reed, A.J.),rendered February 14, 2014. The judgment convicted defendant, upon a jury verdict, ofburglary in the second degree (two counts), grand larceny in the third degree (twocounts), grand larceny in the fourth degree (two counts) and criminal mischief in thethird degree (two counts).
It is hereby ordered that said appeal from the judgment insofar as it imposed sentenceis unanimously dismissed and the judgment is modified on the law by reducing theconviction of grand larceny in the third degree under count two of the indictment to petitlarceny, and striking the language "and family" from the orders of protection, and asmodified the judgment is affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himfollowing retrial upon a jury verdict of, inter alia, two counts of burglary in the seconddegree (Penal Law § 140.25 [2]), two counts of grand larceny in the thirddegree (§ 155.35 [1]), and two counts of criminal mischief in the thirddegree (§ 145.05 [2]) and, in appeal No. 2, he appeals from the resentenceimposed on that conviction.
We reject defendant's contention that County Court committed an O'Ramaviolation that constituted a mode of proceedings error (see People v O'Rama, 78NY2d 270, 276-278 [1991]; see generally CPL 310.30). It is well settled that "notall O'Rama violations constitute mode of proceedings errors . . . Theonly errors that require reversal in the absence of preservation are those that go to thetrial court's 'core responsibilities' under CPL 310.30, such as giving notice to defensecounsel and the prosecutor of the contents of a jury note" (People v Kahley, 105 AD3d1322, 1323 [2013]). Here, we conclude that there was no O'Rama violationinasmuch as it is undisputed that the court provided the jury note to counsel without thejury present, and counsel was able to respond before the jury was in the courtroom.Likewise, it was not a mode of proceedings error to fail to fully respond to the jury's noteseeking testimony about surveillance prior to taking the verdict, inasmuch as the jurycould have resolved that factual issue on its own without further input from the court (see People v Albanese, 45AD3d 691, 692 [2007], lv denied 10 NY3d 761 [2008]; People vSanders, 227 AD2d 506, 506 [1996], lv denied 88 NY2d 994 [1996]).
We reject defendant's further contention that the indictment should be dismissedbecause he was required to wear restraints and prison clothes when he testified before thegrand jury. We conclude that the prosecutor's cautionary instruction to the grand jurors,which admonished them from drawing any negative inferences from the fact thatdefendant was in custody, was "sufficient to dispel any potential prejudice to defendant"(People v Cotton, 120AD3d 1564, 1565 [2014], lv denied 27 NY3d 963 [2016] [internal quotationmarks omitted]; see People vBurroughs, 108 AD3d 1103, 1106 [2013], lv denied 22 NY3d 995[2013]; People v Muniz, 93AD3d 871, 872 [2012], lv denied 19 NY3d 965 [2012], reconsiderationdenied 19 NY3d 1028 [2012]).
[*2] Contrary to defendant's assertion, the court did not abuse its discretion when it requiredthat he be restrained by a stun belt during trial. "[A] stun belt may not be required unlessthe trial court makes findings on the record showing that the particular defendant beforehim needs such a restraint. A formal hearing may not be necessary, but the trial courtmust conduct a sufficient inquiry to satisfy itself of the facts that warrant the restraint.Where it does so, a trial court has broad discretion in deciding whether a restraint isnecessary for courtroom security" (People v Buchanan, 13 NY3d 1, 4 [2009]). On this record,we conclude that the court conducted a sufficient inquiry to satisfy itself of factswarranting use of the restraint.
Defendant's claim that the search warrant was issued without probable cause also iswithout merit. "Probable cause does not require proof sufficient to warrant a convictionbeyond a reasonable doubt but merely information sufficient to support a reasonablebelief that an offense has been or is being committed or that evidence of a crime may befound in a certain place" (People v Bigelow, 66 NY2d 417, 423-424 [1985],citing People v McRay, 51 NY2d 594, 602 [1980]). Further, "[p]robable causemay be supplied, in whole or part, through hearsay information . . . , [and]an informant's basis of knowledge may be verified by police investigation thatcorroborates the defendant's actions or that develops information consistent with detailedpredictions by the informant" (id. at 423-424). Here, the record reflects that theinformation received through an informant connecting defendant to the searchedpremises was independently corroborated by the investigator and was sufficient tosupport a reasonable belief that evidence of a crime could be found at the premises. Thecourt also properly denied defendant's motion for a Franks/Alfinito hearing(see Franks v Delaware, 438 US 154 [1978]; People v Alfinito, 16 NY2d181 [1965]) because defendant failed to make " 'a substantial preliminaryshowing that a false statement knowingly and intentionally, or with reckless disregard ofthe truth, was included by the affiant in the warrant affidavit, and . . . [thatsuch] statement [was] necessary to the finding of probable cause' " (People v Binion, 100 AD3d1514, 1514-1515 [2012], lv denied 21 NY3d 911 [2013]).
Defendant contends that he was deprived of a fair trial by various instances ofalleged prosecutorial misconduct. Defendant failed to object to most of those instances,however, and thus failed to preserve his contention for our review with respect to them(see People v Torres, 125AD3d 1481, 1484 [2015], lv denied 25 NY3d 1172 [2015]). In any event,we conclude that the alleged instances of misconduct, both preserved and unpreserved," 'were not so pervasive or egregious as to deprive defendant of a fairtrial' " (id.; seePeople v Weaver, 118 AD3d 1270, 1270 [2014], lv denied 24 NY3d 965[2014]; cf. People Griffin, 125 AD3d 1509, 1511-1512 [2015]).
We agree with defendant, however, that the evidence is not legally sufficient tosupport the conviction with respect to grand larceny in the third degree under count twoof the indictment because there is insufficient evidence that the value of the propertystolen was $3,000 or more (see Penal Law § 155.35 [1]; see also People v Morgan, 111AD3d 1254, 1257 [2013]; People v Geroyianis, 96 AD3d 1641, 1644-1645 [2012],lv denied 19 NY3d 996 [2012], reconsideration denied 19 NY3d 1102[2012]). Nevertheless, the evidence is legally sufficient to establish that defendantcommitted the lesser included offense of petit larceny (Penal Law§ 155.25), and we therefore modify the judgment accordingly and modifythe resentence by vacating the resentence imposed under count two of the indictment,and we remit the matter to County Court for sentencing on that count (seeGeroyianis, 96 AD3d at 1645).
Contrary to defendant's assertion, the evidence is legally sufficient to support theconviction with respect to criminal mischief in the third degree under count five of theindictment inasmuch as replacement cost is a legally sufficient basis to establish therequisite value of the property (see Penal Law § 155.20 [1]).
Finally, defendant contends, and the People concede, that the orders of protection areoverly broad and should be modified. We agree, and we therefore modify the judgmentby removing from the orders of protection the words "and family."Present—Centra, J.P., Carni, DeJoseph, Curran and Scudder, JJ.