| People v Jackson |
| 2017 NY Slip Op 05273 [151 AD3d 1466] |
| June 29, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Michael Jackson, Appellant. |
Theodore J. Stein, Woodstock, for appellant.
Craig P. Carriero, District Attorney, Malone (Jennifer M. Hollis of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Franklin County (Hall, J.),rendered May 2, 2014, upon a verdict convicting defendant of the crimes of burglary in the firstdegree, assault in the second degree, strangulation in the second degree, criminal contempt in thefirst degree, assault in the third degree and criminal mischief in the fourth degree.
On the night in question, defendant went over to the house of his ex-girlfriend (hereinafterthe victim), purportedly to return some of the victim's things and talk. Based on allegations thatincluded that defendant thereafter repeatedly struck the victim, covered her mouth and nose toconstrict her breathing and, after the victim managed to lock him out of the house, kicked downthe door, entered the home and hit her in the face, defendant was thereafter charged in a six-countindictment. Defendant was charged with burglary in the first degree, assault in the second degree,strangulation in the second degree, criminal contempt in the first degree, assault in the thirddegree and criminal mischief in the fourth degree. Defendant was convicted as charged followinga jury trial. County Court thereafter sentenced defendant to a prison term of 15 years, plus fiveyears of postrelease supervision, on his conviction of burglary in the first degree, a prison term ofseven years, plus three years of postrelease supervision, on his conviction of assault in the seconddegree, a prison term of seven years, plus three years of postrelease supervision, on hisconviction of strangulation in the second degree, a prison term of 1
Defendant contends that the verdict is not supported by legally sufficient evidence and isagainst the weight of the evidence, arguing that the People failed to disprove that he was aninvitee or failed to prove that he formed a contemporaneous intent to commit a crime at any timethat he unlawfully entered or remained on the premises. Initially, defendant's challenge to thelegal sufficiency of the evidence is unpreserved given that he presented evidence after hisunsuccessful motion to dismiss and did not renew the motion at the close of proof (see People v Lane, 7 NY3d 888,889 [2006]; People v Peterkin, 135AD3d 1192, 1192 [2016]). Nonetheless, we necessarily review defendant's claims in ourweight of the evidence review (see People v Peterkin, 135 AD3d at 1192; People v Speed, 134 AD3d 1235,1235 [2015], lv denied 27 NY3d 1155 [2016]; People v Coleman, 144 AD3d 1197, 1198 [2016]). To support theconviction of burglary in the first degree, the People had to prove that defendant had "knowinglyenter[ed] or remain[ed] unlawfully in a dwelling with intent to commit a crime therein, andwhen, in effecting entry or while in the dwelling or in immediate flight therefrom, he. . . [c]aus[ed] physical injury to any person who is not a participant in the crime"(Penal Law § 140.30 [2]). A "defendant's intent to commit a crime within thepremises may be inferred beyond a reasonable doubt from the circumstances of the entry" (People v Peterson, 118 AD3d1151, 1152 [2014] [internal quotation marks and citation omitted], lv denied 24NY3d 1087 [2014]; see People vWomack, 143 AD3d 1171, 1171 [2016], lv denied 28 NY3d 1151 [2017]).
Both the victim and defendant agreed that defendant did not reside at the victim's home.Although defendant may have initially been an invitee, the victim testified that over the course ofthe evening, defendant became increasingly upset and began to, among other things, repeatedlyhit her. According to the victim, she eventually managed to lock defendant out of her house. Thevictim explained that defendant thereafter kicked in the locked door while calling her "a stupidbitch," approached her, hit her in the face and then immediately left the home. Photographicevidence confirmed that the victim's door had been broken.
The victim's actions in locking defendant out of her home support the reasonable inferencethat defendant was no longer an invitee and that he knew that he was unlawfully entering thevictim's home when he kicked down her door. Moreover, the inference that defendant entered thedwelling with the intention of assaulting the victim is readily inferable from the evidence of hisviolent conduct towards the victim preceding her locking him out of his home, his action inkicking down the door and the fact that he then entered the dwelling, hit the victim in the faceand then immediately left the home. In addition, the jury was free to reject as incredibledefendant's testimony, which largely focused on his contention that many of the victim'sextensive wounds were self-inflicted. According deference to the jury's credibilitydeterminations, the finding that defendant knowingly entered the victim's home unlawfully withthe contemporaneous intent to commit a crime therein was not against the weight of the evidence(see People v Hymes, 132 AD3d1411, 1412 [2015], lv denied 26 NY3d 1146 [2016]; People v Sabines, 121 AD3d 1409,1410-1411 [2014], lv denied 25 NY3d 1171 [2015]; People v Bethune, 65 AD3d 749, 752 [2009]).
Finally, County Court did not abuse its discretion in denying defendant's request for amissing witness charge in regard to a state trooper who, after defendant's assault on the victim,took photographs of the victim's wounds and spoke to her. A party opposing a missing witnesscharge can defeat the request for the charge by establishing "that the testimony from the missingwitness would be merely cumulative to other evidence" (People v Onyia, 70 AD3d 1202, 1204 [2010]; see People vKeen, 94 NY2d 533, 539 [2000]). The People established that defendant had been allowed tocross-examine the victim regarding her conversation with the relevant state [*3]trooper, who arrived at the scene in response to a 911 call.Moreover, another state trooper testified to arriving at the scene and observing the victim and herwounds, and he also testified to speaking to the victim while she was at the hospital. Given thisevidence indicating that the nontestifying state trooper's testimony would have been cumulativeto the testifying state trooper, who also spoke with the victim in the aftermath of the incident andobserved her wounds, County Court did not abuse its discretion in denying defendant's requestfor a missing witness charge (see Peoplev Edwards, 14 NY3d 733, 735 [2010]; People v Macana, 84 NY2d 173, 180[1994]; People v Turner, 73 AD3d1282, 1284 [2010], lv denied 15 NY3d 896 [2010]).
Peters, P.J., Egan Jr., Devine and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.