| People v Lawrence |
| 2016 NY Slip Op 05513 [141 AD3d 828] |
| July 14, 2016 |
| Appellate Division, Third Department |
[*1](July 14, 2016)
| The People of the State of New York,Respondent, v James E. Lawrence, Also Known as Black,Appellant. |
Mitch Kessler, Cohoes, for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the County Court of Albany County (Lynch,J.), rendered May 24, 2013, upon a verdict convicting defendant of the crimes ofburglary in the first degree (two counts), robbery in the first degree and robbery in thesecond degree (two counts).
In June 2012, defendant was charged in a five-count indictment with burglary in thefirst degree (two counts), robbery in the first degree and robbery in the second degree(two counts) after he and three other individuals—Shaun Green, NakeyaRodriguez and Antoine Daniels—allegedly entered the home of 86-year-old FredFreije (hereinafter the victim) and beat and robbed him. Following a jury trial, defendantwas convicted as charged and was thereafter sentenced, as a second felony offender, toconcurrent prison terms of 15 years with five years of postrelease supervision. Defendantnow appeals, and we affirm.
Defendant initially argues that the jury verdict was against the weight of theevidence. Specifically, defendant contends that the only direct evidence implicating himin the crimes came from the uncorroborated accomplice testimony of Rodriguez andDaniels, that the testimony of Andrea Lorenzo only established defendant'sconsciousness of guilt and that there was no proof that a black face mask recovered fromamong the stolen items had been worn by him during the [*2]robbery.[FN*] In determining whether a conviction isagainst the weight of the evidence, we look first at all the credible evidence and, if adifferent finding would not have been unreasonable, then, "like the trier of fact below,[we] weigh the relative probative force of conflicting testimony and the relative strengthof conflicting inferences that may be drawn from the testimony" (People vBleakley, 69 NY2d 490, 495 [1987] [internal quotation marks and citation omitted];see People v Hebert, 68AD3d 1530, 1531 [2009], lv denied 14 NY3d 841 [2010]). Based on theweight of the credible evidence, we then decide if the jury was justified in finding thedefendant guilty beyond a reasonable doubt (see People v Danielson, 9 NY3d 342, 348 [2007]). In suchanalysis, we must "determine whether all the elements of the charged crimes were provenbeyond a reasonable doubt" (People v Reeves, 124 AD3d 1068, 1068 [2015], lvdenied 25 NY3d 1076 [2015]; see People v Gibson, 118 AD3d 1157, 1159 [2014], lvdenied 23 NY3d 1062 [2014]; People v Hebert, 68 AD3d at 1531). Finally,we evaluate the evidence in a neutral light and "accord deference to the jury's resolutionof the credibility issues involved, given its opportunity to view the witnesses and observetheir demeanor throughout this process" (People v Shoemaker, 119 AD3d 1073, 1074-1075 [2014],lv denied 25 NY3d 992 [2015]; see People v Phelan, 82 AD3d 1279, 1282 [2011], lvdenied 17 NY3d 799 [2011]).
As relevant here, "[a] person is guilty of burglary in the first degree when he [or she]knowingly enters or remains unlawfully in a dwelling with intent to commit a crimetherein" and when "he [or she] or another participant in the crime . . .[c]auses physical injury to any person who is not a participant in the crime" or "[u]ses orthreatens the immediate use of a dangerous instrument" (Penal Law§ 140.30 [2], [3]). Further, "[a] person is guilty of robbery in the firstdegree when he [or she] forcibly steals property and when, in the course of thecommission of the crime . . . , he [or she] or another participant in the crime. . . [u]ses or threatens the immediate use of a dangerous instrument" (PenalLaw § 160.15 [3]). Pursuant to Penal Law § 160.10 (2) (a),"[a] person is guilty of robbery in the second degree when he [or she] forcibly stealsproperty and when[,] . . . [i]n the course of the commission of the crime orof immediate flight therefrom, he [or she] or another participant in the crime. . . [c]auses physical injury to any person who is not a participant in thecrime." To prove that an individual is guilty of robbery in the second degree pursuant toPenal Law § 160.10 (1), the People must establish that "he [or she] forciblysteals property and . . . [h]e [or she] is aided by another person actuallypresent." "A person forcibly steals property when he or she uses or threatens theimmediate use of physical force upon another person for the purpose of . . .compelling the owner of such property . . . to deliver up the property" (People v Myrick, 135 AD3d1069, 1070 [2016] [internal quotation marks and citation omitted]; see People v Gordon, 23 NY3d643, 649-650 [2014]; People v Griffin, 122 AD3d 1068, 1069 [2014], lvdenied 25 NY3d 1164 [2015]).
At trial, Rodriguez testified that, on June 14, 2012, she, along with Green, Danielsand defendant, went to the victim's home to rob him. According to Rodriguez, it wasLorenzo's idea to rob the victim, and the scheme was discussed with the otherparticipants at Lorenzo's home earlier that day. Rodriguez testified that, at approximately11:00 p.m., she, Green, Daniels and defendant left Lorenzo's home and headed to thevictim's home, where Rodriguez knocked at the victim's back door and asked him if shecould use his phone and then his bathroom. When the victim opened his door, Greenforced his way into the home, with Rodriguez, Daniels and defendant following. WhileRodriguez was in the victim's home, she observed Green hitting the victim with a BBgun and with his hand. Ultimately, the safe in the victim's home was opened [*3]and its contents removed. The perpetrators left the victim'shome with bags of the victim's property, some of which contained coins from the victim'scoin collection. According to Rodriguez, the group then returned to Lorenzo's home,where, in a second floor bathroom, Rodriguez, Green, Daniels and defendant split thestolen property. Thereafter, Green and Daniels left and Rodriguez and defendant stayedat Lorenzo's house overnight. The next morning, Rodriguez called Kelli Lord, her cousinwho resides across the street from Lorenzo, and asked her to hold some of the stolenproperty. Rodriguez also testified that when the police arrived at Lorenzo's home thatmorning, defendant took one of the bags containing stolen coins and placed it in thebasement.
Lorenzo testified that Green, Rodriguez, Daniels and defendant were at her home onJune 14, 2012. Lorenzo denied being involved in the burglary plans, testifying that thegroup sat outside on her porch and that she was unable to hear what they werediscussing. According to Lorenzo, at approximately 10:30 p.m., Rodriguez, Green,Daniels and defendant left and, when they returned approximately an hour to an hour anda half later, they were "in an uproar." Rodriguez had a brown, pleather bag containingjewelry and other items, and defendant had a book bag with him. Lorenzo stated thatthere were also additional bags of coins and other odds and ends and that, when Greenand Daniels returned, the four went into the bathroom with "a bunch of stuff." Lorenzotestified that, at some point, Rodriguez informed her that the group had just robbedsomeone, that Green had "pistol-whipped" the victim and that they were scared that theywere in trouble. Thereafter, Green and Daniels left, each taking a bag, and defendant andRodriguez spent the night. When the police arrived at Lorenzo's home the next day, sheinformed the police that defendant had taken a bag down to her basement. Testimonyfrom a crime scene technician with the State Police noted that evidence confiscated fromLorenzo's home pursuant to a search warrant included, among other things, a plastic bagfrom a basement utility room, which contained numerous coins.
Daniels testified that he, Rodriguez, Green and defendant discussed burglarizing ahome, and the group went to the victim's home to carry out their plan. His testimony wassubstantially consistent with Rodriguez's testimony regarding the entry into the victim'shome. Daniels testified that while he was in the victim's home, he could hear the victimbeing hit repeatedly and he observed Green holding the victim and striking him with afake gun. Green was asking the victim for a combination or a key to a safe, anddefendant was encouraging Green, saying "hit him, hit him again." The group was in thehome for a total of 30 or 45 minutes, and Daniels did not recall anyone wearing anythingon his or her face during the home invasion.
Lord testified that, the morning after the burglary, Rodriguez called her and askedher to store some items. Thereafter, Jodnee Robinson, an acquaintance of Rodriguez andLorenzo, brought the bags across the street to Lord's home. Lord then called the policeand turned the bags over to them. Jason Johnston, a police detective, retrieved the bagsfrom Lord's home and observed, among other things, a black foam ski mask in one of thebags, as well as paperwork that contained the victim's name and collectible coins.Another bag, described by Johnston as a brown canvas purse, also contained collectiblecoins. Johnston testified that the victim informed the police that he was familiar with oneof the perpetrators, later identified as Rodriguez. Also, the victim, who called 911 afterthe incident, stated to the 911 operator that the perpetrators had "things over their nose,over their chin." Testimony further established that the victim's coin collection had beentaken during the burglary.
Kristine Robinson, a forensic scientist with the State Police Forensic InvestigationCenter, testified that she performed examinations on various items related to the instantcrime, including buccal swabs from defendant, and performed an analysis on the blackface mask. She [*4]testified that defendant's DNA profilewas the major contributor on the mask, both inside and outside, with one additionaldonor to the inside and two additional donors to the outside. Her statistical analysisdetermined that the probability of collecting an unrelated individual comparingdefendant's buccal swab with the mask that matches the major contributor is less thanone in three hundred billion.
" 'While accomplice testimony must be corroborated with independentevidence, such evidence does not have to be substantial as it need not establish theelements of the offense; instead, it is sufficient if it tends to connect the defendant to thecrime, thereby assuring the jury that the accomplice has offered credible probativeevidence' " (People vBurns, 68 AD3d 1246, 1247 [2009], lv denied 14 NY3d 798 [2010],quoting People v Harrison, 251 AD2d 893, 894 [1998], lv denied 92NY2d 949 [1998]; see People vGilbo, 52 AD3d 952, 953 [2008], lv denied 11 NY3d 788 [2008]).Lorenzo's testimony supplied the requisite corroboration for defendant's participation inthe crimes, as it placed defendant at her home with the other perpetrators before and afterthe alleged crimes, and her testimony inferred that defendant was in possession of andattempted to conceal the stolen property while at her home (see People v Burns,68 AD3d at 1247-1248). In addition, defendant's DNA was discovered on the face maskthat was among the stolen items recovered, and, according to the victim's statements to911, the perpetrators were wearing something over their faces during the commission ofthe crimes. Viewing the evidence in a neutral light and according deference to the jury'sresolution of credibility issues, we are satisfied that the verdict is not against the weightof the evidence (see People vOliver, 135 AD3d 1188, 1190-1191 [2016], lv denied 27 NY3d 1003[2016]; People v Gamble,135 AD3d 1078, 1078-1080 [2016], lv denied 27 NY3d 997 [2016]; People v Allen, 132 AD3d1156, 1157-1158 [2015], lv denied 26 NY3d 1107 [2016]).
Defendant also contends that he was denied the effective assistance ofcounsel—a claim premised upon his counsel's failure to request anaccomplice-in-fact jury instruction for Lorenzo and to object to the prosecutor'spurported misrepresentations during his summation of the People's DNA expert'sconclusions. "To establish a claim of ineffective assistance of counsel, defendant 'isrequired to demonstrate that he was not provided meaningful representation and thatthere is an absence of strategic or other legitimate explanations for counsel's allegedlydeficient conduct' " (People v Ramos, 133 AD3d 904, 909 [2015], lvdenied 26 NY3d 1149 [2016], quoting People v McRobbie, 97 AD3d 970, 972 [2012], lvdenied 20 NY3d 934 [2012]). Defendant must meet the "high burden" (People v Garcia, 131 AD3d732, 735 [2015] [internal quotation marks and citation omitted], lv denied 27NY3d 997 [2016]; see People vSchulz, 4 NY3d 521, 531 [2005]) of showing that counsel's decision to notrequest an accomplice-in-fact jury instruction "could not have been grounded in alegitimate trial strategy" (Peoplev McGee, 20 NY3d 513, 518 [2013]; see People v Alls, 117 AD3d 1190, 1192 [2014]; People v Izzo, 104 AD3d964, 967 [2013], lv denied 21 NY3d 1005 [2013]).
Although defendant would have been entitled to an accomplice-in-fact juryinstruction given Rodriguez's testimony as to Lorenzo's complicity in planning the homeinvasion, defendant has not sufficiently shown that there was no legitimate trial strategybehind the decision not to request such instruction—particularly in light of defensecounsel's theme throughout the trial and during summation that Rodriguez, who hadreceived a favorable plea bargain in exchange for her testimony against defendant, hadfalsely implicated defendant in an attempt to "ensnare other people to take responsibilityfor her actions" and, as a result, her testimony was not to be believed.
Also unavailing is defendant's argument that his counsel's failure to object to thePeople's mischaracterization of the DNA evidence denied him meaningful representation.In his summation, the prosecutor argued that the face mask "was a DNA match," and that"it was this [*5]defendant's DNA—nobody else'sDNA . . . in the blackface mask in the middle of June." Although the latterstatement was technically inaccurate—as the testimony at trial related thatdefendant was the major contributor of the DNA profile on the face mask and that it wasadmixed with additional donors—we do not find, under these circumstances, thatthe misrepresentation was so egregious or misleading that defense counsel's failure toobject constituted ineffective assistance so as to deprive defendant of a fair trial (see People v Elwood, 80 AD3d988, 990 [2011], lv denied 16 NY3d 858 [2011]; People v Albanese, 38 AD3d1015, 1018-1019 [2007], lv denied 8 NY3d 981 [2007]).
Lahtinen, J.P., McCarthy, Garry and Clark, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Rodriguez pleadedguilty to burglary in the third degree and Daniels pleaded guilty to burglary in the seconddegree. Lorenzo was never charged with a crime related to this incident.