| People v Cantoni |
| 2016 NY Slip Op 04232 [140 AD3d 782] |
| June 1, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Greg Cantoni, Appellant. |
Seymour W. James, Jr., New York, NY (Svetlana M. Kornfeind of counsel), forappellant, and appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, Kayonia Whetstone, and Jonathan K. Yi of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Blumenfeld, J.), rendered November 10, 2011, convicting him of attempted robbery inthe second degree, reckless endangerment in the second degree, criminal possession ofstolen property in the third degree, and unauthorized use of a vehicle in the third degree,upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law and as a matter of discretion in theinterest of justice, the count of the indictment charging the defendant with attemptedrobbery in the second degree is dismissed, and the matter is remitted to the SupremeCourt, Queens County, for a hearing in accordance herewith and thereafter for a newdetermination of those branches of the defendant's motions pursuant to CPL 30.30 whichwere to dismiss the indictment on the ground that he was denied his statutory right to aspeedy trial, and, if the subject branches of the motions are denied, for a new trial on theremaining counts of the indictment.
Contrary to the People's contention, the defendant's challenge to the legal sufficiencyof the evidence supporting his conviction of attempted robbery in the second degree onthe ground that the People failed to prove his larcenous intent is preserved. "[A] generalobjection . . . is sufficient to preserve an issue for [appellate] review when[as here] the trial court 'expressly decided the question raised on appeal' " (People v Graham, 25 NY3d994, 997 [2015], quoting CPL 470.05 [2]; see People v Smith, 22 NY3d 462, 465 [2013]; People v Richberg, 123 AD3d946 [2014]).
"The standard for reviewing the legal sufficiency of evidence in a criminal case iswhether 'after viewing the evidence in the light most favorable to the prosecution, anyrational trier of fact could have found the essential elements of the crime beyond areasonable doubt' " (People v Contes, 60 NY2d 620, 621 [1983], quotingJackson v Virginia, 443 US 307, 319 [1979] [emphasis omitted]). As relevanthere, "[i]n order to sustain a conviction for robbery . . . the People mustestablish that [the] defendant had the requisite . . . larcenous intent," whichmeans "the 'intent to deprive another of property or to appropriate the same to himself orto a third person' " (People v Medina, 18 NY3d 98, 103 [2011], quoting PenalLaw § 155.05 [1]; see Penal Law§ 160.00).
[*2] The concepts of"deprive" and "appropriate" " 'connote a purpose . . . to exertpermanent or virtually permanent control over the property taken, or to causepermanent or virtually permanent loss to the owner of the possession and usethereof' " (People v Medina, 18 NY3d at 105, quoting People vJennings, 69 NY2d 103, 118 [1986] [internal quotation marks omitted]). For thatreason, "[t]he mens rea element of larceny . . . is simply not satisfied by anintent temporarily to use property without the owner's permission" (People vJennings, 69 NY2d at 119).
Here, the People presented proof that, in attempting to evade police officers whowere trying to pull him over, the defendant crashed his vehicle, exited the car, andapproached a white Honda being driven by a young woman. The defendant put one handon the door handle and put his fingers into the opening above the window, which waslowered slightly. The defendant then retracted his hand, fled on foot, and wasapprehended. From this evidence, a jury could rationally infer that the defendantintended to take the Honda to escape the police. To prove robbery, however, the Peoplehad to do more than prove that the defendant intended to take the car to escape the police(cf. Penal Law § 165.08). They had to prove, in addition, that heintended to either "exert permanent or virtually permanent control over theproperty" (People v Medina, 18 NY3d at 105), or to "dispose of [it] in suchmanner or under such circumstances as to render it unlikely that [the] owner [would]recover [it]" (Penal Law § 155.00 [3]). The People did not offer anyevidence from which such an inference could be made (see People vMontgomery, 39 AD2d 889 [1972]; cf. People v Watkins, 117 AD3d 1092, 1093 [2014];People v Brightly, 148 AD2d 623 [1989]). Contrary to the People's contention,the mere fact that there is no affirmative evidence of an intent on the part of thedefendant to only deprive the owner of the car temporarily does not satisfy the People'sburden of proving an intent to deprive the owner of her property permanently.Accordingly, the conviction of attempted robbery in the second degree must be reversed,and that count of the indictment dismissed.
Prior to trial, the defendant made two motions pursuant to CPL 30.30 to dismiss theindictment on the ground that he was deprived of his statutory and constitutional rights toa speedy trial. The motions were denied without a hearing. After weighing the relevantfactors, the Supreme Court properly denied, without a hearing, that branch of thedefendant's second CPL 30.30 motion which asserted violation of his constitutional rightto a speedy trial (see People vAllen, 134 AD3d 730 [2015]; People v Chance, 105 AD3d 758 [2013]). However, theSupreme Court erred in summarily denying those branches of the defendant's motionswhich alleged a violation of his statutory speedy trial rights.
Pursuant to CPL 30.30 (1) (a), a court must grant a motion to dismiss an indictmentcharging a felony offense where the People are not ready for trial within six months ofcommencement of the criminal action, which, in the present case, is a period of 182 days.Where, as here, the defendant meets his initial burden of showing the existence of a delaygreater than six months, the burden shifts to the People to prove that certain periodswithin that time should be excluded (see People v Allard, 113 AD3d 624, 625 [2014]; People v Headley, 100 AD3d775, 776 [2012]).
After excluding certain time periods, the motion court concluded that the Peoplewere chargeable with 133 days of delay, a finding that the People do not dispute. Thedefendant contends, however, that the People should have been charged with 234 days ofdelay. The defendant first challenges the Supreme Court's determination that the Peopleshould be charged only 14 days for an adjournment from February 3, 2010 to February26, 2010, arguing that the People were chargeable with the entire 23-day period. As tothis period of postreadiness delay, the court was correct in excluding the nine-day periodthat exceeded the People's requested adjournment (see People v Boumoussa, 104 AD3d 863 [2013]; seegenerally People v Anderson, 66 NY2d 529, 535 [1985]).
However, the motion court should have charged the People with a 33-dayadjournment from April 16, 2010 to May 19, 2010, when the defendant was supposed toappear in Queens Supreme Court on the instant charge. To the extent the People argue onappeal that this time period was excludable under CPL 30.30 (4) (a), that claim isunpreserved for appellate review, as the People did not assert that exclusion inopposition to the motion (see CPL 470.05 [2]). In their opposition papers, thePeople argued only that this period was excludable under CPL 30.30 (4) (e), whichpertains to a "period of delay resulting from detention of the defendant in anotherjurisdiction [*3]provided the district attorney is aware ofsuch detention and has been diligent and has made reasonable efforts to obtain thepresence of the defendant for trial." Although the People demonstrated that, on April 16,2010, the defendant was detained in Nassau County on pending charges, the Peoplefailed to establish, or raise an issue of fact as to, their diligence in attempting to securethe defendant's presence for the Queens County appearance. The People, and the motioncourt in excluding this period, recounted the efforts the People made after April 16,2010, to have the defendant produced from Nassau County. However, that evidence doesnot conclusively demonstrate that the People made diligent efforts to produce thedefendant for the April 16, 2010, Queens County appearance. Further, althoughthe People cite to a vague promise on the part of the Nassau County court, prior to April16, 2010, to return the defendant to Queens County when his presence was no longerrequired in Nassau County, the People cannot claim to have exercised due diligencewhere they did not inquire, prior to the appearance date, as to whether the defendant had,in fact, been returned to Queens County. Under these circumstances, the People shouldhave been charged with the 33-day delay, bringing their total chargeable time to 166days.
As to the disputed period of delay from June 30, 2010 to August 12, 2010, thePeople failed to conclusively demonstrate that this time period was excludable underCPL 30.30 (4) (a) or (e). First, the People did not conclusively demonstrate diligentefforts, such as service of an order to produce, to secure the defendant's presence inQueens County on June 30, 2010. Further, it cannot be said from this record whether,had the People followed the statutory procedure for having the defendant produced fromNassau County (see CPL 560.10), the application would have been refused forthe reason that the defendant was required to appear in court in Nassau County on thatdate (see People v Romeo,12 NY3d 51, 57 [2009]). Among other things, the evidence does not demonstratewhether the defendant was produced in court in Nassau County for an appearance onJune 30, 2010. For that reason, there is also an issue of fact as to the applicability of CPL30.30 (4) (a). Moreover, there are questions of fact as to whether the People needed 43days in order to produce the defendant after June 30, or whether, with due diligence, theycould have produced him at an earlier date.
Similarly, the People failed to conclusively demonstrate that the 10-day adjournmentthey requested on September 20, 2010 was excludable under CPL 30.30 (4) (e). (Thefive-day period which exceeded the People's adjournment request is not chargeable tothem [see People v Boumoussa, 104 AD3d at 863]). On the record and in theiropposition papers, the People merely advised, summarily, that, on some unknown date,they had served an order to produce. This minimal showing raised an issue of fact, butdid not meet the People's burden of showing due diligence (see People v Bryant,139 AD2d 750 [1988]; People v Wojciechowski, 132 AD2d 586, 587-588[1987]).
Accordingly, the Supreme Court erred in summarily denying the defendant's motionsto dismiss the indictment for violation of his statutory speedy trial rights, and we remitthe matter to the Supreme Court, Queens County, for a hearing in accordance herewithand a new determination thereafter (see People v Santos, 68 NY2d 859, 861[1986]; People v Allard, 113 AD3d at 625-626; People v Wilson, 188AD2d 671, 672 [1992]; People v Wojciechowski, 132 AD2d at 587-588).
In the event that the defendant's motion to dismiss the indictment is denied, after saidhearing, a new trial must be held as to the remaining counts of the indictment in light ofthe prosecutor's summation misconduct. While the defendant's claim regarding thecomments made by the prosecutor during summation is partially unpreserved forappellate review, we nevertheless reach the defendant's unpreserved contentions in theexercise of our interest of justice jurisdiction (see CPL 470.15 [6] [a]).
"[S]ummation is not an unbridled debate in which the restraints imposed at trial arecast aside so that counsel may employ all the rhetorical devices at his [or her] command"(People v Ashwal, 39 NY2d 105, 109 [1976]; see People v Singh, 128 AD3d 860, 863 [2015]). "Rather,'[t]here are certain well-defined limits' " (People v Singh, 128 AD3d at863, quoting People v Ashwal, 39 NY2d at 109). "Among other things, '[theprosecutor] must stay within the four corners of the evidence and avoid irrelevant andinflammatory comments which have a tendency to prejudice the jury against theaccused' " (People v Singh, 128 AD3d at 863, quoting People v Spann, 82 AD3d1013, 1015 [2011] [internal quotation marks omitted]).
[*4] Here, the prosecutor repeatedly shifted the burden ofproof to the defendant, first, by telling the jurors that they could only form a reasonabledoubt if they believed the defense offered by the defendant (cf. People v Singh,128 AD3d at 863; People v Spann, 82 AD3d at 1015), and then, by repeatedlytelling the jurors or implying that they would have to find that the People's witnesses liedin order to believe that defense (see People v Pagan, 2 AD3d 879, 880 [2003]; People vLangford, 153 AD2d 908, 909-910 [1989]; People v Bonaparte, 98 AD2d778 [1983]). In essence, one of the prosecutor's themes in his summation was that thejurors had to determine whether they believed the People's witnesses or whether theybelieved the defendant (who testified), and only if they believed the defendant could theyform a reasonable doubt about the defendant's guilt. Such an impression was clearlyimproper and prejudicial. The prosecutor additionally denigrated the defense (seePeople v Spann, 82 AD3d at 1015; People v Gordon, 50 AD3d 821, 822 [2008]; People v Brown, 26 AD3d392, 393 [2006]; see also People v Singh, 128 AD3d at 863; People vPagan, 2 AD3d at 880), and vouched for the credibility of the police witnesses basedupon their position as law enforcement officers (see People v Singh, 128 AD3d at863; People v Mehmood,112 AD3d 850, 853 [2013]; People v Brown, 26 AD3d at 393; People vPagan, 2 AD3d at 880).
We agree with the defendant that the cumulative effect of these improper commentsdeprived him of a fair trial (see People v Singh, 128 AD3d at 863; People vMehmood, 112 AD3d at 853; People v Spann, 82 AD3d at 1015; Peoplev Gordon, 50 AD3d at 822; People v Brown, 26 AD3d at 393; People vPagan, 2 AD3d at 880-881). Accordingly, in the event that the indictment is notdismissed pursuant to CPL 30.30, a new trial is required. Hall, J.P., Austin, Sgroi andLaSalle, JJ., concur.