| People v Favors |
| 2017 NY Slip Op 07632 [155 AD3d 1081] |
| November 2, 2017 |
| Appellate Division, Third Department |
[*1](November 2, 2017)
| The People of the State of New York, Respondent, v Shawn S.Favors, Appellant. |
Norbert A. Higgins, Binghamton, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen Ferri of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.),rendered April 17, 2014, upon a verdict convicting defendant of the crimes of robbery in the thirddegree and endangering the welfare of a child.
In May 2011, defendant was indicted on charges of burglary in the first degree, robbery in thethird degree, assault in the third degree, endangering the welfare of a child, criminal obstructionof breathing or blood circulation and harassment in the second degree. The charges stem from aMarch 31, 2011 incident in which defendant forced his way into the apartment of hisex-girlfriend (hereinafter the victim) and retrieved a cell phone, which defendant later claimedbelonged to him. Following a jury trial, defendant was convicted of robbery in the third degreeand endangering the welfare of a child, but was acquitted of the remaining charges. Defendantwas sentenced to an aggregate prison term of 2
We affirm. Initially, defendant argues that the verdict convicting him of robbery in the thirddegree was against the weight of the evidence primarily on the ground that he owned the cellphone that he retrieved from the victim's apartment and that he had a right to it superior to that ofthe victim or her daughter. Robbery in the third degree requires that a person "forcibly stealsproperty" (Penal Law § 160.05), which requires, as relevant here, proof that, "in thecourse of committing a larceny, he [or she] use[d] . . . physical force upon anotherperson for the purpose of . . . [p]reventing or overcoming resistance to the taking ofthe property" (Penal Law § 160.00 [1]; see People v Pagan, 19 NY3d 91, 96 [2012]). With regard to thechallenged element here, larceny involves the wrongful taking of property from an "owner" withthe intent to deprive the owner of the property (Penal Law § 155.05 [1]), and an"owner" is broadly defined as "any person who has a right to possession [of the property]superior to that of the taker" (Penal Law § 155.00 [5]; see People v Matthew P., 26 NY3d332, 336 [2015]).
Here, the victim testified that, although she and defendant had been in contact the day beforethe March 31, 2011 incident, their seven-month relationship had ended about one month prior tothe incident. The victim testified that earlier that month, defendant had given cell phones to herand her daughter as belated Christmas gifts and that the monthly service charges were billed todefendant. Testimony also confirmed that the cell phones were activated in mid-March. Thevictim testified that on the evening before the incident, while she was out at a local club,defendant called her and accused her of seeing other men; defendant called her again severaltimes beginning around 1:00 a.m., accusing her of having another man in her apartment andthreatening her. During his last call, the doorbell rang and defendant forced his way into thevictim's apartment through the locked door; she demanded that he leave, but he searched herapartment for the suspected other man. She recounted that a brawl involving herself, defendantand the daughter ensued, during which the victim ended up on the floor with defendant squeezingher neck and hitting her in the head until she surrendered her cell phone to him. The daughtercorroborated this account and testified that defendant pursued her, trying to take her cell phone asshe attempted to dial 911; defendant grabbed, hit and threatened her and then left the apartmentwith the victim's cell phone, unable to gain possession of the daughter's cell phone. A sheriff'sdeputy testified concerning the victim's facial injuries and the damage to the door to the victim'sapartment. An employee of Verizon Wireless testified that the phone numbers for the cell phonesof the victim, the daughter and defendant were all on one shared group cell phone plan and thatthe monthly charges were billed to defendant at his home address. He explained that whileservice would have been cut off if the monthly charges were not paid, Verizon would not attemptto recover the cell phones.
Defendant, by contrast, testified that the cell phones were his property and denied that he hadgiven them as gifts to the victim or her daughter. He claimed that he was never asked to leave theapartment and was ambushed by the victim and the daughter when he attempted to take the cellphones. He denied ever hitting the daughter and claimed that the victim's facial injuries were theresult of an errant punch thrown by the daughter. While he claimed that he had a key to thevictim's apartment and could come and go as he pleased, his key was later tested and did notwork on the door lock.
Upon review of all the credible evidence, we find that a different verdict would not havebeen unreasonable and, thus, we must view the evidence in a neutral light and "weigh the relativeprobative force of conflicting testimony and the relative strength of conflicting inferences thatmay be drawn from the testimony" (People v Bleakley, 69 NY2d 490, 495 [1987][internal quotation marks and citation omitted]; see People v Gordon, 119 AD3d 1284, 1285 [2014], lvdenied 24 NY3d 1002 [2014]). Further, "as part of our weight of the evidence review, [we]evaluate whether the elements of [the] crime were proven beyond a reasonable doubt" (People v Collier, 146 AD3d 1146,1147-1148 [2017], lv denied 30 NY3d 948 [2017]; see People vDanielson, 9 NY3d 342, 349 [2007]).
Initially, it is clear that the jury did not find defendant to be credible, "a determination [to]which we accord deference" (People vGriffin, 26 AD3d 594, 596 [2006], lv denied 7 NY3d 756 [2006]). Viewing theevidence in a neutral light, we find that the People proved all of the elements of robbery in thethird degree, establishing that defendant forcibly stole the victim's cell phone and, in the courseof doing so, he used physical force against the victim and the daughter in order to overcome theirresistance, intending to deprive the victim of her cell phone. Significantly, "ownership is notlimited to the title owner of the property. Rather, it is enough that [the victim] have a right topossession of the property superior to that of the thief" (People v Matthew P., 26 NY3d at336 [internal quotation marks and citations omitted]). The victim's and the daughter's testimonyestablished the victim's superior right to her cell phone. Defendant's claim of ownership of thevictim's cell phone is premised upon the fact that he secured the cell phone plan, paid for theservice—which the victim testified she contributed to—and imposed some costrestrictions on the victim's phone. This did not, however, establish his ownership of or superiorright to the cell phone itself, particularly given the victim's and the daughter's testimony that thecell phones were given as gifts to them, which the jury rationally credited. Based on the recordbefore us, we conclude "that there is no basis upon which to determine that the jury failed to givethe evidence the weight it should be accorded" (People v Johnson, 38 AD3d 1012, 1014 [2007]), and that theverdict was not against the weight of the credible evidence.
Defendant also contends that County Court erred by allowing his parole officer to testifyduring the People's case to establish defendant's residence at the time of the incident, in order torefute defendant's claim that he often stayed overnight at the victim's apartment and could comeand go as he pleased. Prior to trial, the People submitted to the court a list of proposed questionsand the officer's expected answers, and the court permitted testimony solely to establishdefendant's address, i.e., to establish that defendant did not live at the victim's apartment, whichwas relevant to the burglary charge. At trial, the officer's testimony was limited to the fact that hewas employed by the state, knew defendant in a professional capacity and maintained a record ofand visited defendant's residence, which never included the victim's residence. Neither theofficer's job title nor the fact that defendant had a criminal history and was under parolesupervision was disclosed during this testimony, and defendant was acquitted on the burglarycharge, the only charge relevant to this testimony. Given the relevance of this testimony to theburglary charge, of which he was acquitted, we discern no error or abuse of discretion inallowing this circumscribed testimony (see People v Mateo, 2 NY3d 383, 424 [2004],cert denied 542 US 946 [2004]). Moreover, in its charge, County Court specificallyadvised the jury not to speculate as to any matters not in evidence. Finally, given that defendantfailed to request a curative instruction at any point with regard to the officer's testimony and didnot object to the final charge as given, defendant's claims in that regard are unpreserved for ourreview (see CPL 470.05 [2]; People v Jackson, 29 NY3d 18, 22 [2017]; People v Heiserman, 127 AD3d1422, 1424-1425 [2015]).
Peters, P.J., Egan Jr., Devine and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.