| People v Sanford |
| 2017 NY Slip Op 02207 [148 AD3d 1580] |
| March 24, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v RossSanford, Jr., Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Kristen McDermott of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), renderedJanuary 17, 2014. The judgment convicted defendant, upon a jury verdict, of burglary in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofburglary in the second degree as a sexually motivated felony (Penal Law§§ 130.91 [1]; 140.25 [2]). The conviction arises from the victim's report that,one night while she was sleeping, her neighbor had entered her apartment, disrobed, pouncedonto her in bed, held a towel over her mouth, and told her that he had tried to "do stuff" with herin the past. Eventually, defendant let go of the victim, put his clothes back on, and left.Defendant contends that his conviction is based on legally insufficient evidence and that theverdict is against the weight of the evidence. We reject those contentions. Viewing the evidencein the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621[1983]), we conclude that "there is a valid line of reasoning and permissible inferences to supportthe jury's finding that defendant committed the crime[ ] of which he was convicted based on theevidence presented at trial" (People vScott, 93 AD3d 1193, 1194 [2012], lv denied 19 NY3d 967 [2012], deniedreconsideration 19 NY3d 1001 [2012]; see generally People v Bleakley, 69 NY2d490, 495 [1987]). Viewing the evidence in light of the elements of the crime as charged to thejury (see People v Danielson, 9NY3d 342, 349 [2007]), we further conclude that the verdict is not against the weight of theevidence (see generally Bleakley, 69 NY2d at 495).
Defendant failed to preserve for our review his contention that the court improperly deniedhis use of a peremptory challenge to excuse a prospective juror, who was ultimately seated on thejury. We are unable to determine from our review of the record "whether defendant in factexercised [a] peremptory challenge[ ]" to the prospective juror (People v Watkins, 229AD2d 957, 958 [1996], lv denied 89 NY2d 931 [1996]), and the record does not establishthat the court was made aware "that the defense wanted him to rule otherwise" (People v Rosario-Boria, 110 AD3d1486, 1486 [2013] [internal quotation marks omitted]). We decline to exercise our power toreview that contention as a matter of discretion in the interest of justice (see CPL 470.15[6] [a]).
We reject defendant's contention that the indictment was jurisdictionally defective. Contraryto the People's contention, preservation was not required (see People v Iannone, 45 NY2d589, 600-601 [1978]; People vHolmes, 101 AD3d 1632, 1633 [2012], lv denied 21 NY3d 944 [2013]). "[A]nindictment is jurisdictionally defective only if it does not effectively charge the defendant withthe commission of a particular crime[, such as] if it fails to allege that a defendant committed actsconstituting every material element of the crime charged" (Iannone, 45 NY2d at 600). Inthat regard, it is well established that " 'incorporation [in an indictment] by specificreference to the statute [defining the crime charged] operates without more to constituteallegations of all the elements of the crime' " (People v Boula, 106 AD3d 1371, 1372 [2013], lv denied 21NY3d 1040 [2013], quoting People v Cohen, 52 NY2d 584, 586 [1981]). Here, theindictment charged defendant with "burglary in the second degree (as a sexually motivatedfelony)," and thereby incorporated by reference the elements of the crime of a sexually motivatedfelony, i.e., that he committed the "specified offense for the purpose, in whole or substantial part,of his or her own direct sexual gratification" (Penal Law § 130.91 [1]). Althoughthe indictment omitted the Penal Law section number for the charged offense, we conclude thatthe indictment was not jurisdictionally defective inasmuch as it correctly referred to the specifiedcrime by name (see People vParrilla, 145 AD3d 629, 629-630 [2016]; People v Bishop, 115 AD3d 1243, 1244 [2014], lv denied23 NY3d 1018 [2014], denied reconsideration 24 NY3d 1082 [2014]). Insofar asdefendant contends that the indictment is defective under CPL 200.50 (7) (e), he did notchallenge the indictment on that ground in a motion to dismiss the indictment within 45 days ofarraignment (see CPL 210.20 [1] [a]; 255.20 [1]; People v Marshall, 299 AD2d809, 810 [2002]), and he therefore failed to preserve his contention for our review (see People v Slingerland, 101 AD3d1265, 1265-1266 [2012], lv denied 20 NY3d 1104 [2013]).
Defendant further contends that the jury instruction with respect to the elements of the crimeof which he was convicted was erroneous because it allowed the jury to convict him on anuncharged theory of the crime. Preliminarily, contrary to the People's contention, defendant wasnot required to preserve his contention for our review because he " 'has a fundamentaland nonwaivable right to be tried only on the crimes charged' " (People v Graves, 136 AD3d 1347,1348 [2016], lv denied 27 NY3d 1069 [2016]). We nonetheless reject his contention.When charging a defendant with a burglary, "[i]f the People expressly limit[ ] their theory of the'intent to commit a crime therein' element to a particular crime, then they [must] prove that thedefendant intended to commit that crime" (People v Lewis, 5 NY3d 546, 552 n 7 [2005]; see People v James, 114 AD3d1202, 1204 [2014], lv denied 22 NY3d 1199 [2014]). "Where the court's juryinstruction on a particular count erroneously contains an additional theory that differs from thetheory alleged in the indictment . . . and the evidence adduced at trial could haveestablished either theory, reversal of the conviction on that count is required because there is apossibility that the jury could have convicted the defendant upon the uncharged theory"(Graves, 136 AD3d at 1348; see People v Martinez, 83 NY2d 26, 32-35 [1993],cert denied 511 US 1137 [1994]). Although we agree with defendant that the Peopleexpressly limited their theory of defendant's intent to commit a crime therein to his intent tocommit the crime of sexual abuse in the first degree (Penal Law § 130.65 [1]), wereject defendant's contention that the jury instruction allowed the jurors to convict him if theyfound that he had only a general criminal intent at the time that he entered the victim's apartment.We conclude that the court properly instructed the jurors that they could convict defendant only ifthey found that he intended to commit the crime of sexual abuse in the first degree at the time heentered the victim's apartment.
Contrary to defendant's further contention, we conclude that the court properly denied hisrequest to charge the jury on renunciation. "[O]nce the crime in question was committed, thedefense of renunciation is not available as an affirmative defense" (People v Stevens, 65 AD3d 759,763 [2009], lv denied 13 NY3d 839 [2009]; see Penal Law § 40.10[3]). A burglary is complete at the moment of the unlawful entry with the appropriate mens rea(see generally James, 114 AD3d at 1204), and we conclude that there is no reasonableview of the evidence that entitled defendant to a renunciation charge (see People vFranco, 287 AD2d 367, 367-368 [2001], lv denied 97 NY2d 681 [2001]; cf. People v Ervin, 57 AD3d 1398,1399 [2008]).
Defendant contends that the court erred in permitting the victim and the victim's friend totestify about the substance of the victim's disclosure under the prompt outcry exception to thehearsay rule (see generally People v McDaniel, 81 NY2d 10, 16-17 [1993]). Evenassuming, arguendo, that the minimal details to which the victim and the victim's friend testifiedwent beyond the scope of what is allowable under this exception to the hearsay rule, we concludethat the error is harmless. The proof of defendant's guilt is overwhelming, and there is nosignificant probability that he would have been acquitted but for the error (see generallyPeople v Crimmins, 36 NY2d 230, 241-242 [1975]).
Defendant concedes that his contention that he was denied a fair trial by prosecutorialmisconduct on summation is not preserved for our review inasmuch as no objection was made tothe allegedly improper remarks (seePeople v Jones, 114 AD3d 1239, 1241 [2014], lv denied 23 NY3d 1038 [2014],25 NY3d 1166 [2015]), and we decline to exercise our power to review that contention as amatter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Furthermore,viewing the evidence, the law, and the circumstances of this particular case, in totality and as ofthe time of the representation, we conclude that defense counsel provided defendant withmeaningful representation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).Finally, defendant's sentence is not unduly harsh or severe. Present—Whalen, P.J., Centra,DeJoseph, NeMoyer and Troutman, JJ.