| People v Porter |
| 2020 NY Slip Op 03570 [184 AD3d 1014] |
| June 25, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Gerald Porter, Appellant. |
Adam H. Van Buskirk, Auburn, for appellant.
Michael A. Korchak, District Attorney, Binghamton (Rita Basile of counsel), forrespondent.
Colangelo, J. Appeal from a judgment of the County Court of Broome County (Cawley Jr.,J.), rendered September 21, 2017, upon a verdict convicting defendant of the crimes of burglaryin the second degree and criminal possession of stolen property in the fifth degree.
In November 2016, defendant was charged by indictment with burglary in the second degreeand criminal possession of stolen property in the fifth degree based upon allegations that heallegedly entered the apartment of another with intent to steal property and thereafter possessedstolen property. Following a jury trial, defendant was convicted as charged and thereaftersentenced, as a second violent felony offender, to a prison term of eight years, followed by 15years of postrelease supervision, on the burglary conviction and to a lesser concurrent prison termon the conviction of criminal possession of stolen property. Defendant appeals.
Defendant contends that his convictions were not supported by legally sufficient evidenceand were against the weight of the evidence, as the People failed to prove that he had the intent tocommit the crimes. Initially, as defendant's motion for a trial order of dismissal at the close ofproof was "not directed at the specific argument[ ] he raises on appeal, [his] legal sufficiencyclaim is unpreserved" (People vShackelton, 177 AD3d 1163, 1165 [2019], lv denied 34 NY3d 1162 [2020];see People v Gray, 86 NY2d 10, 19-20 [1995]; People v Youngs, 175 AD3d 1604, 1606 [2019]). Nevertheless, inreviewing whether the verdict is against the weight of the evidence, this Court necessarily mustensure that the People proved each element of the crimes beyond a reasonable doubt (see People v Vega, 170 AD3d1266, 1268 [2019], lv denied 33 NY3d 1074 [2019]). "In conducting such a review,where an acquittal would not have been unreasonable, we view the evidence in a neutral lightand, while giving deference to the jury's credibility determinations, weigh the relative probativeforce of conflicting testimony and the relative strength of conflicting inferences that may bedrawn from the testimony" (People vBrinkley, 174 AD3d 1159, 1160-1161 [2019] [internal quotation marks and citationsomitted], lv denied 34 NY3d 979 [2019]; see People v Shabazz, 177 AD3d 1170, 1171 [2019]).
As relevant here, "[a] person is guilty of burglary in the second degree when he [or she]knowingly enters or remains unlawfully in a building with intent to commit a crime therein, andwhen . . . [t]he building is a dwelling" (Penal Law § 140.25 [2]). Withrespect to criminal possession of stolen property in the fifth degree, the People are required toprove that the defendant "knowingly possesse[d] stolen property, with intent to benefit himself[or herself] or a person other than an owner thereof or to impede the recovery by an ownerthereof" (Penal Law § 165.40).
Daniel Flanders, a police sergeant with the City of Binghamton Police Department, testifiedat the trial that he and other officers responded to an apartment in the City of Binghamton,Broome County, where it was reported that Gordon Gibson passed away. Flanders observed atelevision, stereo and DVD player in Gibson's living room and an air conditioner in his kitchenwindow. They removed Gibson's wallet, exited the apartment and locked the door. BecauseGibson had been a client of Catholic Charities of Broome County (hereinafter CatholicCharities),[FN*] and at therequest of Gibson's aunt, two employees of Catholic Charities, John Wirth and Conor Johns,entered Gibson's apartment to take care of anything that needed immediate attention, and theysaw the same electronic items observed by Flanders. Johns and Wirth entered the apartment witha key and locked the apartment door when they left. Three days later, Johns returned to Gibson'sapartment with another Catholic Charities employee and saw that the apartment door was open,that the television and stereo were missing and that the shelves were empty. The air conditionerwas damaged and was on the floor next to the kitchen window, which was also damaged. Thepolice were called and promptly responded.
Anthony Diles, a police sergeant, testified that he went to defendant's apartment a few daysafter the reported burglary and informed defendant that the police had information that defendantmay have removed some items from Gibson's apartment after Gibson had died. Defendantinitially denied removing anything from Gibson's apartment; however, Diles observed an LGstereo that appeared to be new or the same make as the stereo that had been reported stolen and,upon obtaining defendant's permission to check the serial number on the stereo, discovered that itmatched the serial number of the stereo that had been reported stolen. Defendant then showedDiles a 40-inch Samsung flat screen television that he had taken and retrieved a red plasticbucket from a closet that contained, among other things, a Funai DVD player, a cable box and aremote, all of which had been reported stolen. Diles testified that defendant admitted havingtaken those items to his apartment. Defendant told Diles that "he believed that after. . . Gibson had died . . . Gibson had no need for [the items] anymore. . . and that as they were friends there would be no problem with [defendant] takingpossession of those items." Diles testified that defendant also told him that "he knew that. . . it was not legal for him to enter the apartment or to remove those items and thathe knew it was wrong."
In a subsequent written statement made to police that was introduced into evidence at trial,defendant admitted that "[t]he door to Gibson's apartment was unlocked for about a week" afterhe saw Gibson's body being taken away and that "[he] went inside and took an LG stereo andspeakers, a Samsung 40[-inch] flat screen TV and a red bucket with a Funai DVD player and theTime Warner cable box inside of it, [and he] took these things to [his] apartment and was usingthem." Defendant also admitted that he "went inside with [his friend James, who] carried thestereo speakers to [defendant's] apartment. James took some sneakers and a bunch of loosechange . . . and some brown work boots that he kept for himself." Defendant statedthat he "didn't think there was anything wrong because [Gibson] had died and had no use forthem and they were just going to waste in there . . . [and] everyone knew [Gibson]was gone and his stuff was up for grabs."
Joseph Kovarik Jr., the building landlord, testified that both Gibson and defendant weretenants in the building. Soon after Gibson died, defendant asked Kovarik to let him enterGibson's apartment to take back the television that he sold to Gibson. Sometime later, defendantasked Kovarik to write a letter stating that defendant was given permission to enter Gibson'sapartment. When Kovarik refused, defendant told Kovarik that "[he] need[s] the letter because[he] might be going to jail." Sonya Hildebrandt, an employee at a local furniture and appliancestore, and John Ryan, an employee with Catholic Charities' residential program who assistedGibson in managing his finances, provided testimony establishing that the Samsung 40-inch flatscreen television and the LG stereo found in defendant's apartment were purchased by Gibson atthe furniture and appliance store.
Following the close of the People's proof, Melinda Hine, a friend of defendant, testified onhis behalf. She testified that she knew defendant and Gibson for at least five years and that allthree would frequently meet and drink. After Gibson died, Hine observed Gibson's stereo andtelevision in defendant's apartment. She testified that defendant told her that he "was savingthem." Hine testified that after Gibson's death, the door to his apartment remained open for twoweeks, which would corroborate defendant's testimony that Gibson's door was open when heentered.
Defendant testified that he entered Gibson's apartment about one week after Gibson's passingand took Gibson's property to his apartment "for safekeeping for [Gibson's] family and girlfriendbecause [he] didn't know if they knew [Gibson] was dead." However, on cross-examination,defendant admitted that he made no effort to contact Gibson's family. Defendant further testifiedthat he had no intent to steal anything in Gibson's apartment since he has been receiving SocialSecurity income since 2012 and no longer needs to steal.
Inasmuch as the jury could have credited defendant's testimony that he entered Gibson'sapartment and took Gibson's property for "safekeeping" and determined on that basis that thePeople failed to prove that he entered the apartment with the intent to steal, a different verdictwould not have been unreasonable (seePeople v Cruz, 152 AD3d 822, 823 [2017], lv denied 30 NY3d 1018 [2017]).However, the jury clearly credited Diles' testimony that defendant reported taking the itemsbecause Gibson "had no need" for them and, later in the same conversation, told Diles that he"knew it was wrong." The jury also appears to have found defendant's explanation of taking theproperty for "safekeeping" disingenuous given his false statement to Kovarik that he wanted histelevision back. We therefore find that, "when we view the evidence in a neutral light and deferto the jury's credibility determinations," the verdict is supported by the weight of the evidence (People v Santana, 179 AD3d 1299,1301-1302 [2020]; see People vKelsey, 174 AD3d 962, 964-965 [2019], lv denied 34 NY3d 982 [2019]; People v Flower, 173 AD3d 1449,1454 [2019], lv denied 34 NY3d 931 [2019]).
Defendant also contends that County Court committed reversible error by limiting hiscross-examination of Wirth, who, he argues, entered Gibson's apartment as he did, without intentto commit a crime—in Wirth's case to secure the premises—and, in defendant'scase, to remove Gibson's property for safekeeping. "Although a defendant has a constitutionalright to confront witnesses through cross-examination, that right is not absolute" (People vFlower, 173 AD3d at 1456 [citations omitted]; see People v Fields, 160 AD3d 1116, 1120 [2018], lvdenied 31 NY3d 1116 [2018]). As we have held, "[a] trial court may impose reasonablelimits on a defendant's cross-examination of a witness 'based on concerns about . . .interrogation that is repetitive or only marginally relevant' " (People v Gannon, 174 AD3d 1054,1060 [2019], quoting People v Fields, 160 AD3d at 1120 [internal quotation marks andcitation omitted]). Given that defendant's trial counsel pursued a line of questioning that soughtto elicit information about the client base of Catholic Charities and Gibson's relationship withthat agency, among other irrelevant matters, we find no abuse of discretion in limitingcross-examination in this regard (see People v Gannon, 174 AD3d at 1061).
We are also unpersuaded that County Court erred in denying defendant's motion to set asidethe verdict (see CPL 330.30). Inasmuch as defendant's motion was predicated uponunsworn hearsay statements, County Court did not abuse its discretion in denying the motionwithout a hearing (see CPL 330.40 [2] [e] [ii]; People v Smith, 147 AD3d 1527, 1530 [2017], lv denied 29NY3d 1087 [2017]; People vBlalark, 126 AD3d 1124, 1127 [2015], lv denied 27 NY3d 992 [2016]; People v Kenyon, 108 AD3d 933,941 [2013], lv denied 21 NY3d 1075 [2013]).
We reject defendant's contention that he was not afforded meaningful representation. "Toestablish a claim of ineffective assistance of counsel, a defendant is required to demonstrate thathe or she was not provided meaningful representation and that there is an absence of strategic orother legitimate explanations for counsel's allegedly deficient conduct" (People vSantana, 179 AD3d at 1302 [internal quotation marks and citations omitted]; accordPeople v Flower, 173 AD3d at 1457). "This standard is not amenable to precise demarcationand necessarily hinges upon the facts and circumstances of each particular case. A reviewingcourt must avoid confusing true ineffectiveness with mere losing tactics and according unduesignificance to retrospective analysis. In short, the Constitution guarantees a defendant a fair trial,not a perfect one" (People v Sostre,172 AD3d 1623, 1627 [2019] [internal quotation marks and citations omitted], lvdenied 34 NY3d 938 [2019]). "A defendant's criticisms of counsel must amount to more thana simple disagreement with counsel's strategies, tactics or the scope of possiblecross-examination" (People vIldefonso, 150 AD3d 1388, 1388 [2017] [internal quotation marks, brackets andcitations omitted], lv denied 30 NY3d 980 [2017]).
Defendant contends that counsel should have moved to suppress or preclude his writtenstatement or request a jury charge regarding the voluntariness of that statement based on hisalleged intoxication. However, there was little likelihood that he would have prevailed on such arequest. "[A] defendant's intoxication will only render a confession involuntary when the degreeof inebriation has risen to the level of mania or to the level where the defendant is unable tocomprehend the meaning of his or her words" (People v Dale, 115 AD3d 1002, 1003 [2014] [internal quotationmarks and citations omitted]). Inasmuch as the record reflects that defendant "did not appear tobe intoxicated" and "exhibited no slurred or confused speech" when talking to Diles and "wasable to walk and talk without any balance issues," the record fails to support defendant's claim.Defendant's additional claims—that trial counsel failed to issue a subpoena for a witnesswhose testimony would be cumulative, opened the door to questioning by the People about theunderlying acts of his convictions and failed to make certain objections—also lack merit,as "[t]here can be no denial of effective assistance of . . . counsel arising fromcounsel's failure to make a motion or argument that has little or no chance of success" (People v Caban, 5 NY3d 143, 152[2005] [internal quotation marks and citation omitted]; see People v Brown, 169 AD3d 1258, 1260 [2019], lvdenied 33 NY3d 1029 [2019]). Overall, the record reflects that trial counsel presented a cleartrial strategy, made decisions consistent with that strategy, effectively cross-examined witnessesand made appropriate opening and closing statements, thus providing defendant with meaningfulrepresentation (see People v Santana, 179 AD3d at 1302-1303). "[D]efendant'sdisagreement in hindsight with that strategy does not establish that he received less thanmeaningful representation" (People vHenry, 129 AD3d 1334, 1336 [2015], lv denied 26 NY3d 930 [2015]).
Finally, we reject defendant's claim that the sentence imposed was harsh and excessive. As asecond violent felony offender, defendant was exposed to a determinate period of imprisonmentbetween 7 and 15 years on the burglary conviction and was sentenced to a term of eight years,just one year above the statutory minimum. In light of the current offenses and defendant'sextensive criminal history, we find no abuse of discretion or extraordinary circumstanceswarranting a reduction of the sentence in the interest of justice (see CPL 470.15 [3] [c]).Accordingly, the judgment of conviction is in all respects affirmed.
Garry, P.J., Egan Jr., Mulvey and Devine, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Catholic Charities provideshousing assistance to clients such as Gibson and defendant.