| People v Hahn |
| 2018 NY Slip Op 01361 [159 AD3d 1062] |
| March 1, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Daniel K. Hahn, Appellant. |
Brian M. Quinn, Albany, for appellant.
Karen Heggen, District Attorney, Ballston Spa (Gordon Eddy of counsel), forrespondent.
Egan Jr., J.P. Appeal from a judgment of the County Court of Saratoga County (Murphy III,J.), rendered December 3, 2015, upon a verdict convicting defendant of the crime of criminalpossession of stolen property in the third degree.
In February 2015, defendant was charged by indictment with criminal possession of stolenproperty in the third degree in connection with the theft of a 2011 Haulmark enclosed cargotrailer—and the tools and equipment contained therein—from a construction site inthe Village of Schuylerville, Saratoga County. Following a jury trial, defendant was convicted ascharged and he was thereafter sentenced, as a second felony offender, to a prison term of3
Initially, defendant's challenge to the legal sufficiency of the evidence was not preserved forappellate review inasmuch as his counsel made only a general motion to dismiss at the close ofthe People's case-in-chief (see People vPerillo, 144 AD3d 1399, 1399-1400 [2016], lv denied 29 NY3d 951 [2017]; People v Hardy, 57 AD3d 1100,1101 [2008], lv denied 12 NY3d 784 [2009]), and County Court was not otherwisepresented with nor did it expressly decide the legal issue presently raised on appeal (see People v Graham, 25 NY3d994, 996-997 [2015]; People vHawkins, 11 NY3d 484, 492 [2008]). Nevertheless, inasmuch as defendant also arguesthat his conviction was against the weight of the evidence, we will necessarily assess whether theelements of the crime were proven beyond a reasonable doubt (see People v Danielson, 9 NY3d342, 349 [2007]; People vHolmes, 151 AD3d 1181, 1182 [2017], lv denied 29 NY3d 1128[*2][2017]).
Defendant argues that the People failed to prove that he knew the subject property was stolenor that the value of the stolen property exceeded $3,000. We disagree. To be found guilty ofcriminal possession of stolen property in the third degree, the People must prove, beyond areasonable doubt, that the defendant "knowingly possesse[d] stolen property, with intent tobenefit himself [or herself] or a person other than an owner thereof or to impede the recovery byan owner thereof, and when the value of the property exceeds [$3,000]" (Penal Law§ 165.50). To that end, a "defendant's knowledge that property is stolen may beproven circumstantially, and the unexplained or falsely explained recent exclusive possession ofthe fruits of a crime allows a jury to draw a permissible inference that [the] defendant knew theproperty was stolen" (People v Landfair, 191 AD2d 825, 826 [1993], lv denied 81NY2d 1015 [1993]; accord People vFauntleroy, 108 AD3d 885, 886 [2013], lv denied 21 NY3d 1073 [2013]; seePeople v Cintron, 95 NY2d 329, 332 [2000]).
Here, there was ample evidence submitted at trial establishing defendant's knowledge that thetrailer and tools at issue were, in fact, stolen (see People v Holmes, 151 AD3d at1182-1183; People v Fauntleroy, 108 AD3d at 886-887). Michael Manney, acodefendant, testified that he and another individual were with defendant driving around whendefendant "spotted the trailer" and apparently concocted the plan to steal it. Manney testified thatdefendant backed his vehicle up to the trailer, hooked it up and drove off. Manney testified thathe later observed defendant cut the locks off the trailer and remove the license plate. JamesCarlton, defendant's friend and the owner of the auto repair shop where the stolen trailer was laterparked, testified that he spoke with defendant the following morning and averred that defendantadmitted to having stolen the trailer. Carlton testified that he thereafter told defendant to removethe trailer from the premises and subsequently sent a text message to an investigator with theWashington County Sheriff's Office to report the theft.
Even discounting the accounts of Manney and Carlton as self-serving with respect todefendant's direct involvement in the actual theft of the trailer, the People introduced additionalevidence demonstrating defendant's knowledge that the trailer was stolen. The People presentedtestimony from two individuals—as well as corroborating cell phonerecords—indicating that, on the morning after the trailer was stolen, defendant washurriedly attempting to sell the trailer and the contents thereof at a steeply discounted price. BrianSawn, a pawn shop owner, testified that defendant called him numerous times and offered to sellhim the trailer and the tools contained therein for $1,000.[FN1] Mark Mitchell, the individual who ultimatelypurchased the trailer from defendant, indicated that defendant drove to his house and offered tosell him the trailer for $1,000. He also testified that, when he subsequently arrived to view thetrailer, defendant indicated that he had no paperwork for it and told him that he would have toregister it as a "homemade trailer." Mitchell testified that he ultimately gave defendant $1,000 incash for the trailer. Police investigators, meanwhile, testified that, after receiving Carlton's textmessage, they [*3]surveilled his place of business and observed,among other things, defendant both showing the trailer to the subject individuals and removingtools from the trailer and placing them into a nearby vehicle. Tellingly, upon defendant'ssubsequent arrest, he was found in possession of $1,000 cash and various tools that had beenremoved from the stolen trailer.
We are likewise satisfied that the evidence established that the value of the subject stolenproperty exceeded $3,000. For our purposes, "value is defined as 'the market value of theproperty at the time and place of the crime, or if such cannot be satisfactorily ascertained, the costof replacement of the property within a reasonable time after the crime' " (People v Helms, 119 AD3d 1153,1154 [2014], lv denied 24 NY3d 1044 [2014], quoting Penal Law § 155.20[1]; see People v Furman, 152AD3d 870, 874 [2017], lv denied 30 NY3d 1060 [2017]). "In determining the valueof stolen property, the jury need only have a reasonable, rather than speculative, basis forinferring that the value exceeded $1,000" (People v Adams, 8 AD3d 893, 894 [2004] [citations omitted]), and"opinion testimony by a lay witness is competent to establish the value of the property [so longas] the witness is acquainted with the value of similar property" (People v Furman, 152AD3d at 874 [internal quotation marks and citation omitted]; accord People v Helms, 119AD3d at 1155-1156).
Here, Charles Hotaling, the owner of Nycorp Construction—the company whosetrailer and tools were stolen—testified that he had 35 years of experience purchasingconstruction tools and equipment and did so as part of his regular job duties. Hotaling testifiedthat he purchased the trailer in 2011 for approximately $4,700 and opined that, at the time of thetheft, it was worth approximately $2,000. He also testified in detail as to the various toolscontained in the trailer, opining that their total value was approximately $20,000.[FN2] Because a different verdict wouldnot have been unreasonable, we must view the evidence in a neutral light, while deferring to thejury's credibility determinations, to determine if the verdict is against the weight of the evidence(see People v Grierson, 154 AD3d1071, 1072 [2017]). Based on the foregoing, we find that each element of defendant'sconviction for criminal possession of stolen property in the third degree was proven beyond areasonable doubt (see People vRoyster, 107 AD3d 1298, 1301 [2013], lv denied 22 NY3d 958 [2013]).
We also find unpersuasive defendant's contention that he was deprived of fair trial due tocertain alleged evidentiary errors committed by County Court. We perceive no error in CountyCourt's denial of defendant's request to call the prosecutor as a trial witness with respect tocertain discussions that he had with Manney, wherein Manney acknowledged that he had lied in aprior statement that he had provided to the police. County Court properly determined that anyproposed testimony by the prosecutor would be collateral inasmuch as it had "no direct bearingon any issue in the case other than the credibility of a witness" (People v Kerley, 154 AD3d 1074,1075 [2017] [internal quotation marks and citation omitted], lv denied 30 NY3d 1106 [2018]), and "[t]he general rule is that a party may not introduce extrinsicevidence on a collateral matter solely to impeach credibility" (People v Alvino, 71 NY2d233, 247 [1987]; see People vDeFreitas, 116 AD3d 1078, 1081 [2014], lv denied 24 NY3d 960 [2014]). Norwas defendant prejudiced by the court's ruling, as defendant's cross-examination of Manney wasnot limited in any way and both the People and defendant's counsel specifically addressedManney's prior inconsistent statement, his subsequent plea deal and the reasons underlying hischange in testimony. Accordingly, the proposed testimony was properly precluded as irrelevant(see People v Kerley, 154 AD3d at 1075).
We similarly find no error with County Court's admission of defendant's cell phone and cellphone records. The testimony of investigators James Barber and John Deyette sufficientlyidentified the subject cell phone as the one obtained from defendant's vehicle, adequately setforth a strict chain of custody for same and established the authenticity of the cell phone recordsobtained therefrom (see People vPleasant, 149 AD3d 1257, 1258 [2017], lv denied 30 NY3d 1022 [2017]).Additionally, any error that may have resulted from County Court's ruling allowing the People toplay a portion of the videotape of defendant's interview with police, wherein he can be observedpunching a wall, was harmless insofar as there is no reasonable view of the evidence suggestingthat this portion of the video reasonably contributed to defendant's conviction (see People v Newkirk, 75 AD3d853, 857 [2010], lv denied 16 NY3d 834 [2011]).[FN3]
Next, defendant failed to preserve for review his challenge to the search and seizure of hiscell phone inasmuch as he did not provide sufficient sworn allegations of fact in support of hisomnibus motion seeking a suppression hearing, nor did he otherwise render a specific objectionat trial with respect to the introduction of same based on the purported illegality of the search andseizure (see People v Graham, 25 NY3d at 997; People v Watkins, 151 AD3d 1913, 1913 [2017], lv denied30 NY3d 984 [2017]). Defendant also admittedly failed to preserve for our review his claim ofprosecutorial misconduct based upon reference to or use of the word "confederate" in describinghis cell phone by a witness or by the People during summation (see People v Collier, 146 AD3d1146, 1151 [2017], lv denied 30 NY3d 948 [2017]), and we decline defendant'srequest to exercise our interest of justice jurisdiction to take corrective action (see CPL470.05 [2]; 470.15 [6]).
Lastly, defendant's contention that he received an enhanced sentence in retaliation forexercising his constitutional right to trial was not preserved for review inasmuch as neitherdefendant nor his counsel raised such an issue at sentencing (see People v Hurley, 75NY2d 887, 888 [1990]; People vMartinez, 144 AD3d 1326, 1326 [2016], lv denied 28 NY3d 1186 [2017]). Inany event, the fact that defendant's sentence was greater than that offered during plea negotiations(see People v Martinez, 144 AD3d at 1326) or was more severe than that received by anyof his codefendants (see People vHagaman, 139 AD3d 1183, 1185 [2016], lv denied 28 NY3d 930 [2016]) doesnot constitute proof that he was penalized for exercising his right to trial. Nor do we find that hissentence was harsh or excessive. In view of defendant's extensive criminal history, whichincludes a prior felony conviction for burglary and various periods of incarceration for violatingboth probation and parole, and his failure to take any responsibility or show remorse for hiscriminal conduct, we find no abuse of discretion or extraordinary circumstances that wouldwarrant a reduction of his sentence in the interest of justice (see People v Jones, 155 AD3d 1111, 1115 [2017]). Defendant'sremaining contentions, to the extent not addressed, have been reviewed and found to be withoutmerit.
[*4] Lynch, Clark, Mulvey and Rumsey, JJ.,concur. Ordered that the judgment is affirmed.
Footnote 1:Sawn also testified that he andanother individual later drove to take a look at the trailer and associated tools. He testified that,upon viewing same, he thought that defendant's offer seemed "too good to be true." Sawntestified that he did not have the money to buy the trailer at that time; however, 15 minutes afterhaving viewed the trailer with defendant, defendant called and indicated to him that he alreadysold the trailer to another buyer.
Footnote 2:Hotaling testified that the toolsand equipment located inside the trailer included certain speciality color-coated metal screws, asteel chop-saw, a Dewalt compressor, a pancake compressor, a Subaru generator, two completeharness sets with pulleys, a five-gallon master heater, a cordless grease gun, a power cutter, aKobalt tool kit, two Makita tool sets, a Hitachi grinder, an orange ramp set with case, a shingleremover, a Milwaukee job-site radio, two five-gallon Eagle gas cans with spouts, asledgehammer, nail guns, tech guns and numerous other miscellaneous hand and power tools.
Footnote 3:Notably, the videotape wasmuted during this portion of the tape as County Court had previously ruled that defendant hadvalidly invoked his right to counsel prior thereto, precluding any statements that he may havemade to the police thereafter.