| People v Smith |
| 2016 NY Slip Op 04741 [140 AD3d 1396] |
| June 16, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Bobby Smith, Appellant. |
David E. Woodin, Catskill, for appellant.
Paul Czajka, District Attorney, Hudson (James A. Carlucci of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Columbia County(Koweek, J.), rendered January 15, 2014, upon a verdict convicting defendant of thecrimes of burglary in the second degree and robbery in the third degree.
Several masked men participated in a home invasion in Columbia County during theearly morning hours of August 2, 2012, but the occupants were able to call 911 beforethe intruders could restrain them. The perpetrators fled in a vehicle after deputies fromthe Columbia County Sheriff's Office arrived on the scene. Unaware of that turn inevents, troopers dispatched by the State Police were nearing the residence. The troopersobserved a vehicle approaching from the direction of the residence and activated theiremergency lights in order to ensure that the other vehicle would yield at a narrow bridge.The vehicle responded by making a hard right turn onto another road while its right rearpassenger door was open, piquing the suspicions of the troopers and prompting a highspeed chase. The chase concluded when the vehicle left the road and became mired in apond, and defendant was apprehended sitting in the water next to the vehicle.
Defendant and four codefendants were thereafter charged in an indictment withburglary in the first degree and robbery in the first degree. Following a hearing, CountyCourt rejected defendant's application to suppress evidence recovered in the aftermath ofthe chase. County Court further ordered that defendant be tried separately from hiscodefendants and, at the end of that trial, a jury convicted defendant of the lesserincluded offenses of burglary in the second degree and robbery in the third degree.County Court sentenced defendant to an aggregate prison term of 12 years, to befollowed by postrelease supervision of three years, and defendant now [*2]appeals.
We affirm. Defendant challenges the propriety of County Court's suppression ruling,primarily arguing that the troopers were not justified in beginning the pursuit that led tohis arrest. In that regard, "a defendant's flight in response to an approach by the police,combined with other specific circumstances indicating that the suspect may be engagedin criminal activity, may give rise to reasonable suspicion, the necessary predicate forpolice pursuit" (People v Sierra, 83 NY2d 928, 929 [1994]; accord People vWoods, 98 NY2d 627, 628 [2002]; People v Daniels, 24 AD3d 970, 971-972 [2005], lvdenied 6 NY3d 811 [2006]). County Court relied upon the suppression hearingtestimony of one of the troopers involved in the pursuit and, inasmuch as our review ofthe record does not reveal that reliance to have been "clearly erroneous," we accord"great deference" to it (People vMusto, 106 AD3d 1380, 1380 [2013], lv denied 21 NY3d 1007 [2013];see People v Davis, 83AD3d 1210, 1212 [2011], lv denied 17 NY3d 794 [2011]).
The trooper specifically testified to seeing a vehicle traveling toward them from thedirection of a nearby residence that he knew from the dispatch call was in the process ofbeing burglarized. The troopers activated the emergency lights to ensure that the vehiclewould yield the right-of-way and allow them to quickly reach the residence but, insteadof pulling over, the vehicle made a hard right turn onto another road while the right rearpassenger door was open (see Vehicle and Traffic Law § 1144 [a]).At a minimum, that sequence of events gave rise to a reasonable suspicion that theoperator of the vehicle was engaging in reckless driving and permitted the pursuit thatfollowed (see Vehicle and Traffic Law § 1212; People v Carr, 99 AD3d1173, 1175 [2012], lv denied 20 NY3d 1010 [2013]; People v Cobb,172 Misc 2d 851, 852-853 [1997], lv denied 90 NY2d 856 [1997]; People vSimmons, 7 Misc 2d 517, 518 [1957]). The driver of the vehicle then refused to stopand engaged the troopers in a high speed chase, several of the vehicle's occupants fledafter it crashed and defendant was found in close proximity to the abandoned vehicle, allof which afforded probable cause to place defendant under arrest (see Penal Law§ 270.25; Vehicle and Traffic Law § 1212; People vSamms, 258 AD2d 676, 677 [1999], mod on other grounds 95 NY2d 52[2000]). County Court, as a result, properly denied defendant's suppression motion.
Defendant next contends that County Court committed reversible error inmisleadingly charging the jury that a person is guilty of burglary in the second degreewhen he or she "knowingly enters or remains unlawfully in a [dwelling] with theintent to commit a crime therein" (emphasis added) (cf. People v Gaines, 74NY2d 358, 363 [1989]; CJI2d[NY] Penal Law § 140.25 [2]). Defendantraised no objection to that jury charge before County Court and, as such, the issue is notpreserved for appellate review (see CPL 470.05 [2]; People v Melendez, 16 NY3d869, 870 [2011]; People vHeiserman, 127 AD3d 1422, 1424-1425 [2015]). Regardless, "defendant did notpresent any evidence, nor is there any reasonable view of the evidence, that would lead tothe conclusion that [his] intent to commit the crime was formed after his unlawful entry"(People v Fenderson, 203 AD2d 585, 586 [1994], lv denied 84 NY2d 825[1994]). The witnesses at trial consistently testified that defendant and his compatriotswere masked and gloved when they forced their way into the residence, making his intentat the time of entry rather clear. Inasmuch as the jury could not have been misled by thecharge under these circumstances, any error was harmless and we perceive no reason totake corrective action in the interest of justice (see People v Curella, 296 AD2d578, 578 [2002]; People v Castano, 236 AD2d 215, 215 [1997], lv denied89 NY2d 1033 [1997]; People v Fenderson, 203 AD2d at 586).
Defendant's remaining argument is that the sentence imposed was harsh andexcessive but, suffice it to say, "our review of the record reveals neither an abuse ofdiscretion by County [*3]Court nor the existence ofextraordinary circumstances warranting a reduction of the sentence in the interest ofjustice" (People v Murphy,56 AD3d 951, 951 [2008], lv denied 12 NY3d 786 [2009]).
McCarthy, J.P., Egan Jr., Lynch and Mulvey, JJ., concur. Ordered that the judgmentis affirmed.