| People v Carter |
| 2016 NY Slip Op 04740 [140 AD3d 1394] |
| June 16, 2016 |
| Appellate Division, Third Department |
[*1](June 16, 2016)
| The People of the State of New York,Respondent, v Daniel J. Carter, Appellant. |
Susan Patnode, Rural Law Center of New York, Castleton (Kelly L. Egan ofcounsel), for appellant.
Alexander Lesyk, Special Prosecutor, Norwood, for respondent.
Lahtinen, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered January 18, 2013, upon a verdict convicting defendant of thecrime of burglary in the second degree.
On September 13, 14 and 16, 2011, defendant allegedly entered and took moneyfrom the home of an 81-year-old neighbor (hereinafter the victim). He also allegedlyentered and took cash from a car parked in a garage attached to the home of anotherneighbor on September 16, 2011. Following an investigation in which he gave aninculpatory statement to police, he was charged with three counts of burglary in thesecond degree. A jury acquitted him of two of the counts, but found him guilty of theburglary charge involving the entry of the victim's home on September 16, 2011. CountyCourt sentenced him to 10 years in prison together with postrelease supervision.Defendant appeals.
Defendant contends that the evidence was legally insufficient to establish that he didnot have the consent of the victim to enter the victim's home (see Penal Law§§ 140.00 [5]; 140.25 [2]; People v Graves, 76 NY2d 16, 20[1990]). The victim, who was elderly and infirm, occasionally had defendant performchores for him on his property. Defendant had permission to be in the home to do suchwork while the victim was home. The victim, however, stated on direct examination thatdefendant did not have permission to enter the home on September 16, 2011. The victimwas away when defendant entered on that date, and there was evidence from a [*2]neighbor watching the property that defendant accessed thehouse through a rear cellar door, reflecting that he did not want to be seen entering thehome. The victim's testimony was not free from any ambiguity. For example, whencross-examined about a statement given to police after the September 14, 2011 incidentbut before the September 16, 2011 incident, the victim was asked whether he told policethat defendant had permission to be in his home to use the bathroom when the victim wasnot home, and the victim responded that defendant had "access" to the home and"[p]ossibly" had permission to use the bathroom. Nonetheless, there was adequate proofto corroborate defendant's statement in which he acknowledged that he was "notsupposed to" be in the house (see People v Wilbur, 108 AD3d 878, 879 [2013]). Viewedin the light most favorable to the People, a rational jury could have found, with respect tothe September 16, 2011 entry of the victim's home, each of the elements of burglary inthe second degree beyond a reasonable doubt (see People v Danielson, 9 NY3d 342, 349 [2007]; People v Briggs, 129 AD3d1201, 1204 [2015], lv denied 26 NY3d 1038 [2015]). Further, uponindependently weighing the evidence and considering it in a neutral light while accordingdeference to the jury's credibility determinations, we do not find the verdict to be againstthe weight of the evidence (seePeople v Romero, 7 NY3d 633, 643-646 [2006]; People v Morrison, 127 AD3d1341, 1343 [2015], lv denied 26 NY3d 932 [2015]).
Defendant asserts several errors regarding the suppression hearing, none of which wefind persuasive. With respect to the alleged error by County Court in reopening thehearing, this issue is unpreserved since the hearing was reopened on defendant's motionand without objection from defendant (see People v Lewis, 117 AD3d 751, 751 [2014], lvdenied 24 NY3d 1085 [2014]). Although the arresting officer did not have personalknowledge of facts providing probable cause for the arrest, he was acting on the directionof the officer who had been investigating the crimes and sufficient proof was presentedto establish a lawful arrest under the fellow officer rule (see People v Ketcham,93 NY2d 416, 419-420 [1999]; People v Taylor, 134 AD3d 1165, 1169-1170 [2015], lvdenied 26 NY3d 1150 [2016]; People v Lubrano, 117 AD3d 1239, 1240 [2014], lvdenied 25 NY3d 990 [2015]). County Court credited the officers' testimony and,deferring to those credibility determinations, there is ample proof to support the court'sfinding that defendant's statement was voluntary in that he was fully informed of,understood and waived his Miranda rights before any questioning commenced(see People v Nadal, 131AD3d 729, 730 [2015], lv denied 26 NY3d 1041 [2015]; People v Mattis, 108 AD3d872, 874 [2013], lv denied 22 NY3d 957 [2013]).
The remaining arguments do not require extended discussion. Since defendant'sconviction is "supported by legally sufficient trial evidence, [his] challenges to theinstructions given during the grand jury proceeding are precluded" (People v Cotton, 120 AD3d1564, 1566 [2014] [internal quotation marks, brackets, ellipsis and citationsomitted], lv denied 27 NY3d 963 [2016]; accord People v Gibson, 137 AD3d 1657, 1658 [2016])and, in any event, do not set forth error requiring reversal (see People v Pacheco, 56AD3d 381, 384 [2008], lv denied 12 NY3d 786 [2009]). Defendant was notdenied the effective assistance of counsel. His attorney, who pursued a cogent strategyand obtained an acquittal on two of the three charges against defendant, providedmeaningful representation (seee.g. People v Caban, 5 NY3d 143, 152 [2005]). In light of defendant's lack ofremorse and the fact that the sentence was well below the statutory maximum, we findneither extraordinary circumstances nor an abuse of discretion warranting a reduction ofhis sentence (see People vGigliuto, 22 AD3d 890, 892 [2005], lv denied 7 NY3d 789 [2006]), andCounty Court's comments at sentencing do not reflect bias affecting the sentenceimposed (see People vGanoe, 122 AD3d 1003, 1003-1004 [2014], lv denied 25 NY3d 1163[2015]; People v Boccaccio, 288 AD2d 898, 898 [2001]; People v Neish,232 AD2d 744, 746-747 [1996], lv denied 89 NY2d 927 [1996]).
[*3] Peters, P.J., Egan Jr., Devine and Mulvey, JJ., concur.Ordered that the judgment is affirmed.