| People v Holmes |
| 2017 NY Slip Op 04501 [151 AD3d 1181] |
| June 8, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Christopher Holmes, Appellant. |
Sussman & Watkins, Goshen (Jonathan Goldman of counsel), for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered June 26, 2015, upon a verdict convicting defendant of the crime of criminal possessionof stolen property in the fourth degree.
On the evening of February 26, 2014, the victim returned home from work and discoveredthat electronic devices and jewelry had been stolen from her home. Police officers immediatelysuspected that defendant had been involved in the theft because he had been found an hour and ahalf earlier on a neighboring property under suspicious circumstances. When police officers wentto defendant's home, they observed him carrying the stolen electronics to his front door.Defendant was arrested and, when he was searched, the arresting officers found some of thestolen jewelry in the pockets of his pants. Defendant was then charged with criminal possessionof stolen property in the fourth degree and resisting arrest. Following a jury trial, he wasconvicted of criminal possession of stolen property in the fourth degree, but acquitted of resistingarrest. Defendant now appeals.
Defendant contends that his conviction is not supported by legally sufficient evidencebecause the People failed to prove the value of the property and that he knew the property wasstolen. This argument, however, is unpreserved for our review (see People v McGowan, 149 AD3d1161, 1162 [2017], lv denied 29 NY3d 999 [2017]; People v Coleman, 144 AD3d1197, 1198 [2016]). Nevertheless, because defendant also challenges the weight of theevidence, we will "evaluate whether the elements of the crime were proven beyond a reasonable[*2]doubt" (People v Cherry, 149 AD3d 1346, 1347 [2017] [internal quotationmarks, brackets and citation omitted]; see People v Danielson, 9 NY3d 342, 349 [2007]). To finddefendant guilty of criminal possession of stolen property in the fourth degree, the People wererequired to prove that defendant "knowingly possesse[d] stolen property, with intent to benefithimself or a person other than an owner thereof" and that the stolen property had a value inexcess of $1,000 (Penal Law § 165.45 [1]; see People v Robtoy, 144 AD3d 1190, 1191 [2016], lvdenied 28 NY3d 1150 [2017]). Although defendant contends that the People were requiredto adduce direct evidence establishing his knowing possession of stolen property, it is well settledthat "a defendant's knowledge that property is stolen may be proven circumstantially, and theunexplained or falsely explained recent exclusive possession of the fruits of a crime allows a juryto draw a permissible inference that [the] defendant knew the property was stolen" (People v Fauntleroy, 108 AD3d885, 886 [2013] [internal quotation marks and citation omitted], lv denied 21 NY3d1073 [2013]; see People v Cintron, 95 NY2d 329, 332 [2000]; People v Palmer, 142 AD3d 1381,1383 [2016], lv denied 28 NY3d 1074 [2016]).
Here, the People established that electronics and jewelry were stolen from the victim's homeand that defendant was found in exclusive possession of a majority of these items less than anhour after they were reported stolen. Two experts testified that the items in defendant'spossession had a fair market value exceeding $1,000 and, although defendant contended thatsimilar items were being sold on the Internet for less, the experts explained that any suchdiscrepancy could be attributed to the fact that the Internet items were in different conditions thanthe items recovered from defendant. In addition to this proof, the People also established thesuspicious circumstances under which defendant was found on the property of the victim'sneighbor shortly before the theft was reported, including defendant's nervous demeanor, thedubious explanation he gave the neighbor for his presence on the property and his initial refusalto provide identification when he was confronted by the neighbor. At trial, defendant offered yetanother explanation for his presence on the property that was markedly different than theexplanation he provided to the neighbor the night of the incident. Defendant also testified to anelaborate series of events that he claimed resulted in his innocent possession of the stolenproperty.
Based upon defendant's testimony, a different verdict would not have been unreasonable hadthe jury credited his account (see generally People v Danielson, 9 NY3d at 348).However, after viewing the evidence in a neutral light and deferring to the jury's credibilitydeterminations (see generally People vCooley, 149 AD3d 1268, 1269 [2017]), we are satisfied that the evidence establishedthat the value of the items exceeded $1,000 (see People v Adams, 8 AD3d 893, 894 [2004]) and that defendanthad knowledge that the items were stolen (see People v Waterford, 124 AD3d 1246, 1246-1247 [2015], lvdenied 26 NY3d 972 [2015]; Peoplev Leibert, 71 AD3d 513, 514 [2010], lv denied 15 NY3d 752 [2010]; People v Starks, 70 AD3d 585,586 [2010], lv denied 15 NY3d 757 [2010]; People v Singh, 35 AD3d 317, 317 [2006], lv denied 8NY3d 927 [2007]). In addition, we reject defendant's assertion that the People were required toestablish precisely how he came into possession of the stolen property or whether he was theperson who burglarized the victim's home (see Penal Law § 165.45[1]).
We are similarly unpersuaded by defendant's contention that improper remarks by theprosecutor during summation deprived him of a fair trial. To the extent that this claim ispreserved for our review (see People vWynn, 149 AD3d 1252, 1255-1256 [2017]), we agree with defendant that certaincomments by the prosecutor during summation improperly shifted the burden of proof, but findthat County Court's prompt and thorough curative instructions ameliorated any resultingprejudice (see People v VanVorst,118 AD3d 1035, 1037 [2014]; People v Terry, 85 AD3d 1485, 1487 [2011], lv denied 17NY3d 862 [2011]). Moreover, even [*3]considering thechallenged remarks, " 'viewing the summation as a whole, the prosecutor did not engagein a pervasive and flagrant pattern of misconduct so as to deprive defendant of a fairtrial' " (People v Cherry, 149 AD3d at 1348 [brackets omitted], quoting People v Collier, 146 AD3d 1146,1151 [2017]).
Finally, defendant's claim of judicial bias is unpreserved for our review inasmuch as he failedto make an appropriate motion before County Court or otherwise request that the court recuseitself (see People v Prado, 4 NY3d725, 726 [2004]; People vMusella, 148 AD3d 1465, 1467-1468 [2017]; People v Mao-Sheng Lin, 50 AD3d 1251, 1253 [2008], lvdenied 10 NY3d 961 [2008]). In any event, our review of the record fails to disclose anyevidence of judicial bias (see People v Darling, 276 AD2d 922, 924 [2000], lvdenied 96 NY2d 733 [2001]). Defendant's remaining claims have been reviewed anddetermined to be lacking in merit.
Garry, J.P., Lynch, Mulvey and Aarons, JJ., concur. Ordered that the judgment is affirmed,and matter remitted to the County Court of Ulster County for further proceedings pursuant toCPL 460.50 (5).