| People v Strauss |
| 2017 NY Slip Op 08215 [155 AD3d 1317] |
| November 22, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Charles D.Strauss, Appellant. |
Rosemarie Richards, Gilbertsville, for appellant, and appellant pro se.
William G. Gabor, District Attorney, Wampsville (J. Scott Porter of counsel), forrespondent.
McCarthy, J.P. Appeal from a judgment of the County Court of Madison County(McDermott, J.), rendered November 5, 2015, upon a verdict convicting defendant of the crimesof burglary in the second degree (two counts) and petit larceny.
In connection with two home invasions, defendant was charged with two counts of burglaryin the second degree and one count of petit larceny under an accomplice liability theory. After ajury trial, during which defendant's accomplice, Benjamin Phetteplace, testified against him,defendant was convicted as charged and was sentenced, as a persistent violent felony offender, to16 years to life in prison for each count of burglary in the second degree, to be servedconsecutively, and one concurrent year in jail for the petit larceny conviction. Defendantappeals.
The evidence presented at trial was legally sufficient to support the convictions and theverdict is not against the weight of the evidence. A person commits burglary in the second degreeby knowingly entering a dwelling with the intent to commit a crime therein (see PenalLaw § 140.25 [2]; People vFurman, 152 AD3d 870, 871 [2017]). Petit larceny involves knowingly stealing property(see Penal Law § 155.25). Regarding accessorial liability, as is relevanthere, "[w]hen one person engages in conduct which constitutes an offense, another person iscriminally liable for such conduct when, acting with the mental culpability required for thecommission thereof, he [or she] . . . intentionally aids such person to engage in suchconduct" (Penal Law § 20.00; see People v Spencer, 152 AD3d 863, 864 [2017]).
[*2] It is undisputed that Phetteplace broke into two residenceswith the intent to steal items from both, and he took jewelry from one of the residences, allwithout permission of the owners. The only question was whether defendant was Phetteplace'saccomplice in these crimes. Phetteplace testified that he and defendant discussed and agreed tocommit burglaries, defendant drove the vehicle, helped pick out potential target houses, droppedPhetteplace off, and would listen to a scanner and alert Phetteplace if police were coming, andPhetteplace called defendant when he was done so that defendant could pick him up.Nevertheless, "[a] defendant may not be convicted of any offense upon the testimony of anaccomplice unsupported by corroborative evidence tending to connect the defendant with thecommission of such offense" (CPL 60.22 [1]; see People v Leduc, 140 AD3d 1305, 1306 [2016], lvdenied 28 NY3d 932 [2016]). "The corroborating evidence, however, need not prove that thedefendant committed the charged crime; rather it is enough if it tends to connect the defendantwith the commission of the crime in such a way as may reasonably satisfy the [jury] that theaccomplice is telling the truth" (People vSlaughter, 150 AD3d 1415, 1416 [2017] [internal quotation marks, brackets andcitations omitted]; see People v Furman, 152 AD3d at 873).
Other evidence corroborated Phetteplace's testimony. Defendant's girlfriend testified that, onthe night in question, the two men left together and defendant said they were going out to makemoney. The arresting police officer saw defendant's vehicle stuck in a snowbank a mile from thelocation of a burglar alarm call. Defendant was in the driver's seat and stated that he had beenforced off the road, but no other vehicle tracks were present in the newly fallen snow tosubstantiate his story. Fresh footprints in the snow led from the location of the second burgledresidence (the location of the burglar alarm call) to the vehicle. When the same officer returnedby tracking the footprints, he noticed jewelry thrown in the snow near defendant's vehicle. Thatjewelry was later identified by its owner as having been stolen from the first burgled residence.When defendant was asked for the whereabouts of his "partner," defendant answered that he wasin the woods. Police tracked footprints that led away from defendant's vehicle into the woods,eventually capturing Phetteplace. Viewing the evidence in the light most favorable to the People,this corroborating evidence, along with Phetteplace's testimony, provided legally sufficientevidence to satisfy every element of the crimes with which defendant was charged (see People v Garcia, 131 AD3d732, 733 [2015], lv denied 27 NY3d 997 [2016]; People v Brown, 62 AD3d 1089, 1090 [2009], lv denied 13NY3d 742 [2009]). Considering the evidence in a neutral light, and according deference to thejury's credibility determinations, defendant's convictions for burglary in the second degree andpetit larceny under a theory of accomplice liability are supported by the weight of the credibleevidence (see People v Furman, 152 AD3d at 875; People v Ruiz, 148 AD3d 1212, 1215 [2017]; People v Anderson, 118 AD3d1138, 1142 [2014], lv denied 24 NY3d 1117 [2015]).
County Court did not err in finding that probable cause existed to support defendant's arrest.The determination of a suppression motion by a hearing court is accorded great weight and willgenerally not be disturbed unless the record demonstrates that the court's legal conclusion orresolution of credibility issues was clearly erroneous (see People v Williams, 25 AD3d 927, 928 [2006], lv denied6 NY3d 840 [2006]). "Probable cause . . . 'does not require proof sufficient towarrant a conviction beyond a reasonable doubt but merely information sufficient to support areasonable belief that an offense has been or is being committed' " (People v Guthrie, 25 NY3d 130,133 [2015] [emphasis omitted], quoting People v Bigelow, 66 NY2d 417, 423[1985]).
At the suppression hearing, the arresting officer testified that defendant's story about beingforced off the road was not supported by swerve marks or tire tracks that would indicate anothervehicle was involved. The officer was aware of a burglar alarm call and that another [*3]officer had arrived and determined that an actual burglary hadoccurred. The other officer relayed that a single set of fresh footprints in the snow led away fromthe house, so the arresting officer began following the footprints along the rural road and tracedthem back to defendant's vehicle. Although he had not seen any jewelry when he firstencountered defendant 15 minutes earlier, upon his return, the officer saw jewelry thrown in thesnow near the passenger side of the vehicle. County Court held that defendant, who "was foundin close geographic and temporal proximity to the [second burglary]," offered "an implausibleexplanation" for his disabled vehicle and that, together with the fresh footprints leading to hisvehicle from the crime scene and jewelry scattered in the snow, there was "ample probablecause" to support defendant's arrest. While defendant presented plausible alternativeexplanations, and it was later discovered that the jewelry had not been taken from the nearbyburgled residence, the officer's testimony was not incredible as a matter of law and the recordsupports County Court's determination that the officer had a reasonable belief that a crime hadbeen committed. Accordingly, we will not disturb that determination.
We need not decide whether defense counsel's opening statement opened the door toadmission of defendant's prior bad acts. Even if County Court erred in finding that counselopened the door, any such error did not deprive defendant of a fair trial because the court couldhave allowed admission of this evidence in the first place (see People v Denson, 26 NY3d 179, 187-188 [2015]; People v Morris, 21 NY3d 588,597-598 [2013]; People v Alvino, 71 NY2d 233, 241-243 [1987]). The profferedevidence was relevant to defendant's intent and to demonstrate a common scheme or plan withhis accomplice, Phetteplace. Although evidence of prior similar crimes is always somewhatprejudicial, the amount and type of evidence that was introduced was limited; for example, thePeople did not—as they originally intended—call victims of several unchargedcrimes to identify their stolen items that were seized from defendant's storage unit. The Peoplesimply asked further questions of Phetteplace and defendant's girlfriend, two witnesses who werescheduled to testify in any event.
Additionally, upon the People's renewal of their Molineux application, County Courthad the authority to make a modification of its ruling (even without the door being opened).Defendant expresses concern with the timing of the court's modification. However, a defendant isnot entitled as a matter of law to be informed before trial that the People intend to offerMolineux evidence, and—while the better practice is for the People to make anapplication, and the court to rule thereon, before trial, as occurred here—it is permissiblefor the court to make a ruling on such evidence as late as " 'just before the witnesstestifies' " (People v Small,12 NY3d 732, 733 [2009], quoting People v Ventimiglia, 52 NY2d 350, 362[1981]). The court issued its modified ruling before any evidence was presented. Althoughdefendant contends that he relied on the court's initial ruling, a party can always move to renewan application, as the People did here, and defendant was alerted before trial to the possibilitythat the originally-excluded Molineux evidence could be introduced under certaincircumstances. Moreover, the court gave repeated limiting instructions, advising the jury that theevidence of prior crimes could not be used for propensity purposes but only as proof ofdefendant's intent relative to aiding Phetteplace in committing the charged crimes (see Peoplev Morris, 21 NY3d at 598). Under the circumstances, we conclude that, regardless ofwhether County Court erred in finding that defendant opened the door, defendant was notdeprived of a fair trial by the court's determination to allow the Molineux evidence thatwas introduced.
Furthermore, County Court properly denied defendant's request for a jury charge that hisgirlfriend was an accomplice and that her testimony would therefore need to be corroborated. Therecord provides no factual support for the assertion that she participated in the charged offenses,possessed the required intent or importuned or aided defendant or Phetteplace to [*4]commit the instant crimes (see People v Brockington, 147 AD3d 460, 461 [2017], lvdenied 29 NY3d 1029 [2017]). We also reject defendant's argument that the supplementaljury instruction regarding accomplice liability denied him of a fair trial. To clarify any potentialconfusion, the court explained the People's theory of how defendant acted in concert withPhetteplace. Considering the charge as a whole, without taking isolated phrases out of context,the jury "would gather from its language the correct rules which should be applied in arriving at adecision," and not be confused regarding the applicable law (People v Umali, 10 NY3d 417, 427 [2008] [internal quotationmarks, brackets and citations omitted], cert denied 556 US 1110 [2009]).
We have reviewed defendant's remaining contentions and find them to be without merit.
Lynch, Rose, Clark and Pritzker, JJ., concur. Ordered that the judgment is affirmed.