| People v Spencer |
| 2017 NY Slip Op 05631 [152 AD3d 863] |
| July 13, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Joshua J. Spencer, Appellant. |
Alexander W. Bloomstein, Hillsdale, for appellant.
Paul Czajka, District Attorney, Hudson (James A. Carlucci of counsel), for respondent.
McCarthy, J.P. Appeal from a judgment of the County Court of Columbia County (Nichols,J.), rendered March 3, 2014, upon a verdict convicting defendant of the crimes of burglary in thefirst degree (two counts) and criminal possession of a weapon in the second degree (twocounts).
Defendant, along with his codefendants Christopher Anderson and Jeremy Bost,[FN1] was charged in a nine-countindictment for a series of events stemming from three home invasions occurring in January 2012.After a jury trial, defendant was convicted of two counts of burglary in the first degree (counts 1and 2) and two counts of criminal possession of a weapon in the second degree (counts 3 and4)—all of which related to the same home invasion on January 12, 2012—andacquitted of the remaining charges related to the other home invasions. Defendant was thereaftersentenced to 15 years in prison for each conviction of burglary in the first degree, to runconcurrently, and 10 years in prison for each conviction of criminal possession of a weapon inthe second degree, to run concurrently with each other but consecutively to the burglaryconvictions. Defendant now appeals.
[*2] Defendantfirst contends that the evidence was legally insufficient to support his convictions and that theverdict was against the weight of the evidence. Although defendant's challenge to the legalsufficiency of the evidence is unpreserved given that he did not renew his motion to dismiss atthe close of all the proof (see People vPigford, 148 AD3d 1299, 1300 [2017]), "our weight of the evidence review includes anevaluation as to whether the elements of the crimes for which [defendant] was convicted wereprove[n] beyond a reasonable doubt" (People v Mesko, 150 AD3d 1412, 1412 [2017]; see People v Morgan, 149 AD3d1148, 1149 [2017]). Insofar as a different verdict would not have been unreasonable, we"weigh conflicting testimony, review any rational inferences that may be drawn from theevidence and evaluate the strength of such conclusions" in order to determine whether the verdictis against the weight of the evidence (People v Danielson, 9 NY3d 342, 348 [2007]; see People v Bailey, 94 AD3d 904,905 [2012], lv denied 19 NY3d 957 [2012]).
As for counts 1 and 2 of the indictment, a person is guilty of burglary in the first degree whenhe or she "knowingly enters or remains unlawfully in a dwelling with intent to commit a crimetherein, and when, in effecting entry or while in the dwelling or in immediate flight therefrom, he[or she] or another participant in the crime . . . [i]s armed with . . . adeadly weapon; or . . . [d]isplays what appears to be a pistol . . . orother firearm" (Penal Law § 140.30 [1], [4]). With respect to counts 3 and 4 of theindictment, "[a] person is guilty of criminal possession of a weapon in the second degree wherehe or she intends to use a loaded firearm unlawfully against another person or possesses anyloaded firearm outside of his or her home or business" (People v Bost, 139 AD3d 1317, 1321 [2016] [citations omitted];see Penal Law § 265.03 [1] [b]; [3]). Additionally, in order to find thatdefendant was guilty of these charges pursuant to a theory of accessory liability, the People hadto prove, beyond a reasonable doubt, that he "possessed the mental culpability necessary tocommit the crime[s] charged, and that in furtherance thereof, he solicited, requested,commanded, importuned or intentionally aided" Anderson and/or Bost in their commission of thecrimes as the principal actors (People v Bailey, 94 AD3d at 905 [internal quotation marksand citations omitted]; see Penal Law § 20.00). In this regard, defendant'sintent may be inferred from his "actions and the surrounding circumstances" (People v Newell, 148 AD3d 1216,1221 [2017] [internal quotation marks and citations omitted], lv denied 29 NY3d 1035[2017]).
During the trial, the victims of the January 12, 2012 burglary—a husband andwife—testified that they were asleep in bed when the husband heard someone walkinginside the house. He got up to investigate and, after turning a light on, saw two people holdinghandguns. The husband testified that one intruder was wearing a mask and holding an automatichandgun and the other intruder was wearing a bandana over his face and holding a pistol. Thewife testified that both men were wearing dark hooded sweatshirts. The husband further testifiedthat, at that point, he heard "a pistol being engaged" and "saw the guns coming up" as theintruders began to run towards him. The husband barricaded himself in another room and thewife yelled at the intruders until they left the house. The victims saw a vehicle leaving theirhouse and called the police. While the victims noted that a downstairs door remained open, noneof their property was taken or disturbed.
Shortly thereafter, local police officers received a 911 dispatch call alerting them to the homeinvasion. They were told that the suspects were wearing dark hooded sweatshirts and that ahandgun was displayed. En route to the crime scene, one of the officers spotted a car whosedriver was wearing a dark hooded sweatshirt and stopped the vehicle after it turned withoutsignaling. Although the vehicle belonged to defendant, Anderson was driving. Bost was sitting inthe backseat, defendant was seated in the back middle seat and there were two female passengers,one seated in the front passenger seat and one seated in the back. One of the officers [*3]testified that there was a black mask on the floor between Bost anddefendant, both of whom were also wearing dark hooded sweatshirts. After state troopers arrivedat the scene, they conducted a search of Bost and discovered two handguns in his waistband, oneof which was loaded. Later, a search of the vehicle revealed an unfired .45 caliber bullet locatedon the passenger floor. A firearms expert testified that both of the recovered weapons wereoperable.
Shavanyce Lewis, who was sitting in the backseat, testified that she was with CatrinaLewis—who was sitting in the front passenger seat—Bost, Anderson and defendanton January 12, 2012. She explained that they intended to go to a party in defendant's vehicle.However, Shavanyce Lewis testified that, before going to the party, Bost directed Anderson tothe victims' residence and Anderson pulled defendant's car into the driveway. Although there wasno conversation about what they were doing there, Shavanyce Lewis testified that defendant said,"[W]e shouldn't bring those in the house," referring to the two handguns, but that Anderson andBost disagreed with defendant. Catrina Lewis testified that she heard a gun slide engage whilethey were in the car. Both women said that all three men exited the vehicle at the same time,returned to the vehicle at roughly the same time after approximately five minutes and thatAnderson drove them away. Shavanyce Lewis said that, after they left the victims' home,Anderson handed his weapon to Bost and told them that he had tried to fire his handgun at one ofthe victims, but his gun jammed. Bost placed Anderson's weapon behind him. Shavanyce Lewisfurther testified that defendant did not speak after he got back into the car, but that he looked"nervous [and] scared."
Although a different verdict would not have been unreasonable, viewing the evidence in aneutral light and deferring to the jury's determinations of credibility, the evidence establishes thatdefendant was liable as an accomplice to Anderson and Bost in committing burglary in the firstdegree. Defendant's intent to burglarize the home may be reasonably inferred from his statementabout the guns and the fact that he left and returned to the car at the same time as Anderson andBost (see People v Newell, 148 AD3d at 1221). Additionally, while "defendant's merepresence at the scene of the crime is, standing alone, insufficient to support a finding of criminalliability," the lack of discussion between defendant, Anderson and Bost as to their purpose at thevictims' home prior to exiting the vehicle indicated that defendant knew what that purpose was,his behavior after returning to the car was evidence of consciousness of guilt and, under thecircumstances, the fact that he supplied the vehicle for the endeavor provided proof that heintentionally aided Anderson and Bost (People v Knox, 137 AD3d 1330, 1331-1333 [2016], lvdenied 27 NY3d 1070 [2016]; see generally People v Burrell, 236 AD2d 240, 242[1997]).
However, as for defendant's convictions of criminal possession of a weapon in the seconddegree, the conclusion that defendant was an accessory to Anderson or Bost in their unlawfulpossession of weapons is against the weight of the evidence (see Penal Law§§ 20.00, 265.03 [1] [b]; [3]). There was no proof presented during the trialthat defendant ever personally possessed one of the handguns or in any wayencouraged[FN2] orintentionally aided Anderson or Bost in their possession of the handguns (see People vSkinner, 190 AD2d 761, 761-762 [1993]; People v Rayside, 187 AD2d 680, 681[1992], lv denied 81 NY2d 845 [1993]; compare People v [*4]Gangar, 79 AD3d1262, 1263 [2010], lv denied 16 NY3d 831 [2011]).[FN3] Accordingly, as "there was no evidence that. . . defendant solicited, requested, commanded, importuned, or intentionally aidedanother individual to possess the firearm" (People v Cummings, 131 AD2d 865, 868[1987]; compare People vCarpenter, 138 AD3d 1130, 1131-1133 [2016], lv denied 28 NY3d 928 [2016]),we reverse defendant's convictions of counts 3 and 4 of the indictment for criminal possession ofa weapon in the second degree and dismiss said counts.
Next, County Court did not err in denying defendant's motion to suppress the evidenceobtained as a result of the traffic stop. It is "well settled that a police officer may reasonablyinitiate a traffic stop based upon the existence of probable cause to believe that a traffic infractionhas occurred, regardless of the underlying motivation of the officer in doing so" (People v Issac, 107 AD3d 1055,1057 [2013]; see People v Robinson, 97 NY2d 341, 348-349 [2001]). At the probablecause hearing, Donald Krapf, one of the police officers involved in the traffic stop, testified that,while responding to the report of the burglary, he observed defendant's vehicle make a turnwithout signaling (see Vehicle and Traffic Law § 1163 [d]). Moreover,Krapf's testimony established that defendant's vehicle was in close proximity to the scene of thereported burglary shortly after the report was received, and Krapf observed that the driver of thevehicle was a male wearing a hooded sweatshirt, features that matched the description that hehad received of both suspects in the reported burglary. Given Krapf's testimony, and deferring toCounty Court's determination that the testimony was credible, the court did not err in concludingthat there was probable cause to stop the vehicle (see People v Anderson, 118 AD3d 1138, 1140-1141 [2014], lvdenied 24 NY3d 1117 [2015]).
Additionally, and contrary to defendant's contention, defendant was not deprived of theeffective assistance of counsel. To establish the denial of the effective assistance of counsel, a"defendant must demonstrate that his [or her] attorney failed to provide meaningfulrepresentation," which includes demonstrating "the absence of strategic or other legitimateexplanations for counsel's allegedly deficient conduct" (People v Caban, 5 NY3d 143, 152 [2005] [internal quotation marksand citations omitted]; see People vBullock, 145 AD3d 1104, 1106 [2016]). Further, the standard is one of "reasonablecompetence, not perfect representation" (People v Bullock, 145 AD3d at 1107; see People v Turner, 5 NY3d 476,480 [2005]). Defendant has not shown a lack of legitimate explanation for counsel's failure tochallenge three jurors who acknowledged that they knew a police investigator who was alate-added witness. Each of the jurors who acknowledged knowing the investigator averred thatthey could remain impartial, and defendant has not shown that there was no legitimateexplanation for counsel's preference to accept County Court's inquiry as to their impartiality, or,more generally, counsel's preference to continue the trial with those three jurors.
Moreover, we perceive no deficiency in defense counsel's decision not to request that CountyCourt poll the jury after the verdict (seePeople v Johnson, 91 AD3d 1115, 1116 [2012], lv denied 18 NY3d 959 [2012]).In addition, we cannot say that counsel fell short of reasonable competence by failing to request acircumstantial evidence charge, particularly where his closing argument focused on the People'sfailure to meet their burden of proof of establishing that defendant had engaged in any activity toaid in burglarizing the residence on January 12, 2012 or their burden in regard to the othercharges against defendant. Otherwise, and examining the record as a whole, counsel exercisedreasonable competence in engaging in motion practice, [*5]making opening and closing statements, cross-examining witnessesand making appropriate objections. Accordingly, defendant fails to demonstrate that he receivedless than meaningful representation (seePeople v Kalina, 149 AD3d 1264, 1267 [2017]).
Finally, with regard to the concurrent sentences imposed on defendant's convictions ofburglary in the first degree, which were less than the maximum authorized sentences (seePenal Law § 70.02 [1] [a]; [3] [a]), we find no abuse of discretion or extraordinarycircumstances that would warrant reduction thereof (see People v Elmendorf, 141 AD3d 1035, 1035-1036 [2016]).Defendant's remaining contentions have been considered and are either academic or withoutmerit.
Garry, Egan Jr., Devine and Clark, JJ., concur. Ordered that the judgment is modified, on thefacts, by reversing defendant's convictions of criminal possession of a weapon in the seconddegree under counts 3 and 4 of the indictment; said counts dismissed and the sentences imposedthereon vacated; and, as so modified, affirmed.
Footnote 1:Although defendant, Bost andAnderson underwent a combined Mapp/Dunaway hearing, they were each triedseparately, and Bost's and Anderson's appeals have previously come before this Court (People v Bost, 139 AD3d 1317[2016]; People v Anderson, 118AD3d 1138 [2014], lv denied 24 NY3d 1117 [2015]).
Footnote 2:In fact, during summation, thePeople emphasized the "importan[ce]" of the evidence that defendant explicitly discouragedAnderson and Bost from bringing the handguns into the home.
Footnote 3:There is no evidence indicatingthat defendant even knew that Anderson or Bost possessed handguns prior to their arrival at thevictims' home.