| People v Lukosavich |
| 2020 NY Slip Op 07953 [189 AD3d 1895] |
| December 24, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Matthew A. Lukosavich, Appellant. |
Keith D. Dayton, Public Defender, Cortland, for appellant.
Michael D. Ferrarese, Special Prosecutor, Norwich (Karen Fisher McGee, New YorkProsecutors Training Institute, Inc., Albany, of counsel), for respondent.
Pritzker, J. Appeal from a judgment of the County of Cortland County (Campbell, J.),rendered January 18, 2018, upon a verdict convicting defendant of the crime of grand larceny inthe fourth degree.
Defendant was charged by indictment with one count each of burglary in the second degree,grand larceny in the fourth degree and conspiracy in the fourth degree stemming from an incidentin March 2016 wherein the victim's apartment was broken into and several valuable items werestolen. After a jury trial, defendant was convicted of grand larceny in the fourth degree andacquitted of the other charges. After County Court denied defendant's motion to set aside theverdict, defendant was sentenced to a prison term of 1
Defendant challenges the verdict as legally insufficient and against the weight of theevidence. "When considering a challenge to the legal sufficiency of the evidence, we view theevidence in the light most favorable to the People and evaluate whether there is any valid line ofreasoning and permissible inferences which could lead a rational person to the conclusionreached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proofand burden requirements for every element of the crime charged" (People v McCabe, 182 AD3d 772,772-773 [2020] [internal quotation marks and citations omitted]; see People v Glover, 160 AD3d1203, 1204 [2018]). "In contrast, when undertaking a weight of the evidence review, wemust first determine whether, based on all the credible evidence, a different finding would nothave been unreasonable and then, if not, weigh the relative probative force of conflictingtestimony and the relative strength of conflicting inferences that may be drawn from thetestimony to determine if the verdict is supported by the weight of the evidence" (People v Dickinson, 182 AD3d783, 783-784 [2020] [internal quotation marks, brackets and citations omitted], lvdenied 35 NY3d 1065 [2020]; seePeople v Creech, 165 AD3d 1491, 1492 [2018]). "When conducting this review, weconsider the evidence in a neutral light and defer to the jury's credibility assessments" (People v Kelsey, 174 AD3d 962,963 [2019] [internal quotation marks and citations omitted], lv denied 34 NY3d 982[2019]; see People v Gill, 168AD3d 1140, 1140-1141 [2019]).
Grand larceny in the fourth degree requires the People to prove that, with intent to depriveanother of property or to appropriate the same to himself, herself or to a third person, thedefendant steals property having a value of more than $1,000 (see Penal Law§§ 155.05 [1]; 155.30 [1]). As relevant here, "[a] defendant may not beconvicted of any offense upon the testimony of an accomplice unsupported by corroborativeevidence tending to connect the defendant with the commission of such offense" (CPL 60.22 [1];see People v Chapman, 182 AD3d862, 863 [2020]). "The corroborative evidence need only tend to connect the defendant tothe crime; it need not establish all the elements of the offense" (People [*2]v Heimroth, 181 AD3d 967, 968 [2020] [internal quotationmarks and citations omitted], lv denied 35 NY3d 1027 [2020]; see People vSteinberg, 79 NY2d 673, 683 [1992]).
The victim testified that, on the day of the burglary, she lived with her then-boyfriend in anapartment in the City of Cortland, Cortland County. The victim left her apartment atapproximately 12:00 p.m. and did not return until four hours later, when she found that the doorto her apartment was broken, her apartment had been ransacked and there were several missingitems. She testified that she compiled a list of missing items, which included two laptops, threetablets, jewelry and a safe. The safe contained, among other things, $2,500 in cash and theadoption records for her two cats from the Schuyler County Humane Society. The victim alsotestified to missing a silver makeup bag. The victim contacted the police and, while officers werestill at her apartment, she noticed that two of her acquaintances, Joseph Bernhardt and KurtisMontgomery, had deleted her on social media, which made her suspicious. Later that day, thevictim tracked one of the stolen tablets to a town where she knew Bernhardt and Montgomerylived.
A patrol officer and a sergeant with the City of Cortland Police Department both testifiedregarding their involvement in the burglary investigation. The patrol officer testified that, uponhis arrival to the victim's apartment, there appeared to be a forced entry and the apartment was"completely trashed." The sergeant, who also responded to the victim's apartment, testified thathe took photographs and interviewed the victim and the victim's boyfriend. The sergeant'sinvestigation led him to interview Bernhardt and Montgomery, who both confessed to beinginvolved in the burglary along with defendant. After Montgomery informed the sergeant that theproceeds of the burglary were located at defendant's residence, the sergeant obtained a searchwarrant and conducted a search of the home where defendant lived with his father and hisgrandmother. The sergeant testified that, while conducting his search at and around the residence,he located a safe in a wooded area up a hill near the house and that there was ash in the safe aswell as a card related to cat adoption. The patrol officer, who assisted in the search, testified thathe found a small silver bag in the loft of the garage and that the safe appeared to have beenforced open and damaged and that inside was a document from the Schuyler County HumaneSociety.
Defendant's accomplices, Bernhardt and Montgomery, both testified at trial. Their testimonyestablished that, on the morning of the burglary, Bernhardt and Montgomery discussed stealingdrugs from the victim's boyfriend because they wanted drugs but did not have any money. Thepair decided to contact defendant because stealing was "his thing,"[FN1] and they picked him up sometime between12:00 p.m. and 1:00 p.m. at a supermarket in the City of Ithaca[*3], Tompkins County. Bernhardt testified that all three men formed aplan in which Bernhardt was to be the driver and Montgomery and defendant would enter theapartment to get the drugs. Montgomery testified that defendant forced open the door and beganto ransack the apartment. Montgomery testified that items such as credit cards, laptops and a safewere taken. When Bernhardt went to pick Montgomery and defendant up, he observed the twomen carrying a safe and a few items wrapped in pillowcases, including drug paraphernalia andelectronics. Bernhardt drove himself, Montgomery and defendant back to Bernhardt's house andtransferred the items from his car to Montgomery's car. Montgomery testified that he then drovedefendant to his residence and left almost all of the stolen items at defendant's house, mostly inhis bedroom. He testified that, to his belief, defendant sold all of the property. Montgomery alsotestified that the safe was not removed from his car until the next day, when he and defendantcarried it behind defendant's residence to what defendant referred to as a "fort." There, defendantbroke open the safe and burned the contents. Both Bernhardt and Montgomery testified that theyentered into a plea bargain in relation to their charges that required them to testify at defendant'strial.
Defendant's sole witness at trial was his grandmother, who testified that she had owned theresidence where, in March 2016, she lived with defendant and defendant's father and that, behindthe property, on top of the hill predominantly owned by a neighbor, defendant and his friends hadbuilt a fort when they were children. The grandmother testified that, the morning of the burglary,she drove defendant to Ithaca and dropped him off at a meeting at 11:05 a.m. Oncross-examination, she testified that defendant's father picked defendant up at 1:15 p.m. She alsotestified that, the next day, Bernhardt, who is also her grandson, came to her house with someoneelse and defendant got in the car and left with them. The grandmother was shown photographs ofthe location where the safe was recovered, which she identified as being on the hill behind herresidence.
Based on the foregoing, we find that the accomplice testimony[FN2] was supported by corroborative evidence thattended to connect defendant to the larceny. At trial, Montgomery and Bernhardt both testifiedthat defendant participated in stealing from the victim and her boyfriend, including removing thesafe, among other items. Montgomery also testified that they brought the safe up to the areabehind defendant's residence and burned the contents. Later, the police officers located the safe inthat location with ash at the bottom of the safe and a card from the Schuyler County HumaneSociety. A silver makeup bag was recovered from the garage which, at trial, the victim identifiedas hers, as well as the safe. She also testified that she adopted one of her cats from the SchuylerCounty Humane [*4]Society, the organization for which therewas a card found inside the safe. Accordingly, we find the accomplice testimony to be"adequately corroborated" (People v Heimroth, 181 AD3d at 969; see People v Davis, 28 NY3d 294,303 [2016]). As to the weight of the evidence, a different finding would not have beenunreasonable as the jury could have discredited the accomplice testimony and concluded thatdefendant did not participate in the crime. Nevertheless, given that there was very little testimonyat trial that conflicted with the accomplices' testimony, we defer to the credibility determinationsmade by the jury and find that the verdict is not against the weight of the evidence (see Peoplev Dickinson, 182 AD3d at 788; People v Burwell, 183 AD3d 173, 180 [2020], lv denied 35NY3d 1043 [2020]).
Defendant also contends that he was denied his constitutional right to a fair trial by CountyCourt's preclusion of his alibi testimony. Pursuant to CPL 250.20 (3), "[i]f at the trial thedefendant calls such an alibi witness without having served the demanded notice of alibi,. . . the court may exclude any testimony of such witness relating to the alibidefense." "Precluding a criminal defendant from proffering evidence in support of his or her owncase implicates the Compulsory Process Clause of the Sixth Amendment" (People v Perkins, 166 AD3d 1285,1287 [2018] [citations omitted], lv denied 33 NY3d 980 [2019]; see Taylor vIllinois, 484 US 400, 407-409 [1988]). Therefore, " 'such sanction clearly is the mostdrastic available and would be appropriate only in the most egregious circumstances,' such aswhen the omission is willful and motivated by a desire to obtain a tactical advantage" (Peoplev Kelly, 288 AD2d 695, 697 [2001], lv denied 97 NY2d 756 [2002], quotingPeople v Brown, 274 AD2d 609, 610 [2000]; see People v Perkins, 166 AD3d at1287).
Here, there is no dispute that defendant's purported alibi notice was not filed within the timeframe set forth in CPL 250.20 (1). Rather, on October 6, 2017, a little more than three weeksprior to the scheduled trial date,[FN3] defendant sent an email to the People with a"Notice of Potential Alibi-type Witnesses." The notice provided that defendant intended to callhis father and his grandmother to testify as to defendant's whereabouts around the time of theburglary. Defendant noted that this testimony did not include where defendant was atnoon—the time of the burglary as set forth in the bill of particulars. It does not appear thatdefendant also sent this notice to County Court. On October 10, 2017, the People, by letter,requested that the court preclude these witnesses because the notice was untimely and thetestimony would be prejudicial to the People. The next day, the court signed a decision and order,granting the People's request for preclusion of these witnesses. Notably, defendant was notprovided the opportunity to oppose the People's application or to set forth good cause for thedelay (see CPL [*5]250.20 [1]). Subsequently, defendantmoved for reconsideration of the court's decision to preclude the alibi witnesses, arguing that thePeople were not prejudiced as they already knew that his father was a potential witness in thatthey provided defendant an unsigned statement taken by a police officer. The court treateddefendant's motion as one to renew or reargue and denied it, holding that defendant did not meetthe standard for either type of relief.[FN4] The court also held that, if it were to reach themerits, it would reach the same conclusion, as defendant failed to show good cause and did notcomply with the Criminal Procedure Law requirements.
Although we agree with the People that defendant's constitutional argument advanced onappeal is unpreserved as it was not raised before County Court (see People v Bruno, 111 AD3d488, 490 [2013], lv denied 23 NY3d 1018 [2014]), we choose to exercise our interestof justice jurisdiction to take corrective action (see CPL 470.15 [6] [a]). To that end,County Court abused its discretion by precluding defendant from introducing testimony fromdefendant's father at trial.[FN5] The court rested its entire conclusion on thefailure to comply with the Criminal Procedure Law and that good cause was not shown, despitethe fact that defendant was not given an opportunity to respond to the People's informal motionto preclude the alibi testimony. Notably, the court did not make any findings that defendant hadan improper purpose in providing the late notice nor did it weigh the possibility of prejudice tothe People against the right of defendant to present a defense (see People v Perkins, 166AD3d at 1287-1288; compare People vLeFebvre, 45 AD3d 1175, 1176 [2007]). Instead, the court, without hearing fromdefendant, implemented the most "drastic sanction" without considering any lesser sanctions thatmay have protected the People from potential prejudice (People v Brown, 274 AD2d at610). In making the appropriate inquiry, alibi testimony would have been important todefendant's defense given that much of the People's argument was based on accomplicetestimony and that the People would not have been prejudiced as they were already aware of thefather's statement. "Therefore, we find that County Court violated defendant's constitutional rightto present a defense" (People v Perkins, 166 AD3d at 1288 [citations omitted]).
Furthermore, we do not find that this error was harmless beyond a reasonable doubtinasmuch as there is a reasonable possibility that the error contributed to the conviction (seePeople v Crimmins, 36 NY2d 230, 237 [1975]; People v Perkins, 166 AD3d at1288). The evidence introduced was "largely circumstantial" as it rested primarily on theaccomplice testimony, which was not entirely credited by the jury (People v Harris, 177 AD3d 1199,1205-1206 [2019], lv denied 35 NY3d 970 [2020]; see People v Rouse, 34 NY3d 269, 281 [2019]). Further, the jurymade inquiries into what was required [*6]to find defendantguilty of grand larceny in the fourth degree and requested to hear all of the grandmother'stestimony again, suggesting that it struggled to reach a verdict (see People v Harris, 177AD3d at 1205-1206). The evidence against defendant rested primarily on credibilitydeterminations of two witnesses who had favorable cooperation agreements and, given the jury'sacquittal of defendant of the burglary and conspiracy charges, it is clear that it did not find theaccomplice testimony entirely credible. Thus, had defendant's father testified that he was withdefendant on the day of the incident, around the time that the burglary was said to have takenplace, there is a reasonable probability that the jury may have reached a different verdict (seePeople v Perkins, 166 AD3d at 1288; People v Collins, 30 AD3d 1079, 1080 [2006], lv denied 7NY3d 811 [2006]; People v Brown, 274 AD2d at 610). Accordingly, defendant'sjudgment of conviction must be reversed and the matter remitted for a new trial on count 2 of theindictment, charging defendant with grand larceny in the fourth degree. In light of thisdetermination, defendant's remaining contentions have been rendered academic.
Garry, P.J., Egan Jr. and Aarons, JJ., concur. Ordered that the judgment is reversed, as amatter of discretion in the interest of justice, and matter remitted to County Court of CortlandCounty for a new trial on count 2 of the indictment.
Footnote 1:County Court issued a limitinginstruction that this testimony was not to be considered for proving propensity or a predispositionto commit the crimes charged.
Footnote 2:The jury received instructionsthat Montgomery and Bernhardt were accomplices as a matter of law and that a defendant couldnot be convicted solely on the testimony of an accomplice.
Footnote 3:According to the record, at thetime that defendant sent his purported alibi notice, defendant's trial was scheduled only as aback-up trial for October 30, 2017 and would only occur on that date if the lead trial settled.
Footnote 4:Problematically, County Courtnoted that a motion to reargue "must be made on the original papers and new facts may not beconsidered." However, because defendant did not have an opportunity to respond to the People'sinformal motion to preclude, he was unable to assert any arguments or facts in the first instance.Similarly, the court indicated that a motion to renew "is not a second chance freely given toparties who have not exercised due diligence in making their first factual presentation," despitethat defendant did not have the opportunity to set forth an initial factual presentation.
Footnote 5:As the grandmother did testify attrial, no argument is raised on appeal relative to her testimony.