| People v Butcher |
| 2021 NY Slip Op 01291 [192 AD3d 1196] |
| March 4, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Albert L. Butcher, Appellant. |
Catherine A. Barber, Guilderland, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (William D. VanDelinder of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the County Court of Chemung County (Baker, J.),rendered April 6, 2018, upon a verdict convicting defendant of the crimes of grand larceny in thethird degree and criminal trespass in the third degree.
Defendant was charged in a five-count indictment arising from incidents on two dates; on thefirst date defendant allegedly entered a storage building on the victim's business property andremoved tires, and on the following day defendant allegedly stole a box truck from the propertyoutside the victim's home. Following a Huntley hearing, County Court denied defendant'ssuppression motion. At the conclusion of trial, the jury found him guilty of grand larceny in thethird degree for stealing the truck and of criminal trespass in the third degree for entering thestorage building, but acquitted him of the three remaining counts. The court sentenced him, as asecond felony offender, to a prison term of 3
County Court properly denied defendant's motion to suppress the statements that he made toan investigator. "The People bore the burden of proving the voluntariness of defendant'sstatements beyond a reasonable doubt, including that any custodial interrogation was preceded bythe administration and defendant's knowing waiver of his Miranda rights" (People v Byrd, 152 AD3d 984,985 [2017] [internal quotation marks and citations omitted]; see People v Fisher, 126 AD3d 1048, 1049 [2015]). "Determiningwhether a statement is voluntary is a factual issue governed by the totality of the circumstancesand the credibility assessments of the suppression court in making that determination are entitledto deference" (People v Fisher, 126 AD3d at 1049 [internal quotation marks, brackets andcitation omitted]). A defendant's intoxication or the influence of narcotics or medications arefactors to be considered when determining voluntariness, but such a condition typically will notrender a statement involuntary unless it rises "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]; see People v Schompert, 19 NY2d 300, 305 [1967], certdenied 389 US 874 [1967]; People vDasher, 109 AD3d 1125, 1125 [2013], lv denied 22 NY3d 1040 [2013]; People v Van Guilder, 29 AD3d1226, 1227 [2006], lv denied 7 NY3d 796 [2006]).
At the suppression hearing, the investigator testified that he went to see defendant at ahospital three days after defendant was admitted for an allergic reaction. According to theinvestigator, a nurse informed him that defendant was not on any pain medication or anythingthat would prevent him from communicating. The investigator testified that defendant may havehad an IV drip at the time, but there was no evidence regarding what medications [*2]defendant had taken or was taking. During the interview, whichlasted approximately one hour, defendant was sitting up, did not show any physical symptoms ofinfirmity and was "very coherent, very lucid." The investigator administered the Mirandawarnings at the beginning of the interview and, after defendant waived those rights, defendantcoherently answered questions and provided explanations for his behavior on the victim'sproperty. Shortly after the investigator left, he was informed that defendant had checked himselfout of the hospital. Under the circumstances, County Court did not err in finding theinvestigator's testimony credible and, relying on that testimony, in concluding that defendant'sstatements were voluntarily made after he knowingly waived his Miranda rights (see People v O'Brien, 186 AD3d1406, 1407 [2020], lv denied 36 NY3d 930 [2020]; People v Dale, 115AD3d at 1003-1004).
The convictions are not against the weight of the evidence. Although defendant's generalmotion to dismiss lacked the specificity required to preserve his challenge to the legal sufficiencyof the evidence, in reviewing the weight of the evidence this Court must necessarily determinewhether the People have proven all the elements of the charged crimes (see People v Bombard, 187 AD3d1417, 1417-1418 [2020]; People vSecor, 162 AD3d 1411, 1412 [2018], lv denied 32 NY3d 941 [2018]; People v Loomis, 56 AD3d 1046,1046-1047 [2008]). "When conducting this review, we consider the evidence in a neutral lightand defer to the jury's credibility assessments" (People v Conway, 179 AD3d 1218, 1218 [2020] [internal quotationmarks and citation omitted], lv denied 35 NY3d 941 [2020]).
Regarding criminal trespass in the third degree, a video depicts a man, identified by thevictim as defendant, entering the victim's storage building. The victim testified that defendantnever had permission to enter that building without the victim being present. Giving deference tothe jury's credibility findings, the evidence established that defendant unlawfully entered thebuilding (see Penal Law § 140.10 [a]).
A person is guilty of grand larceny in the third degree when he or she steals property valuedin excess of $3,000 (see Penal Law § 155.35 [1]). "In this context, value isdefined as 'the market value of the property at the time and place of the crime, or if such cannotbe satisfactorily ascertained, the cost of replacement of the property within a reasonable timeafter the crime' " (People vHelms, 119 AD3d 1153, 1154 [2014], lv denied 24 NY3d 1044 [2014], quotingPenal Law § 155.20 [1]). "In determining the value of stolen property, the jury needonly have a reasonable, rather than speculative, basis for inferring that the value exceeded thestatutory requirement" (People v Helms, 119 AD3d at 1154 [internal quotation marks andcitations omitted]). "[B]ecause property valuation is not strictly a subject for expert testimony,opinion testimony by a lay witness [*3]is competent to establishthe value of the property if the witness is acquainted with the value of similar property" (People v Furman, 152 AD3d 870,874 [2017] [internal quotation marks and citation omitted], lv denied 30 NY3d 1060[2017]; see People v Helms, 119 AD3d at 1155).
The investigator testified that defendant admitted having driven the truck away from thevictim's house, and had asserted that he was allowed to drive it. The victim testified that he didnot grant such permission. He owns two businesses and, although defendant sometimes workedfor the victim in his auto business, there would be no reason for defendant to drive the box truck,as that was used only in his other business.
As for the value of the truck, the victim testified that knowing the value of and setting pricesfor vehicles is part of his auto business. He attends car auctions twice each week, buys vehicles,repairs them and resells them. The victim testified that he had also purchased multiple dumptrucks in the past. He had purchased this box truck approximately four or five years earlier forabout $4,000, and it was not in good working order at the time. He made repairs thereafter andhad maintained the truck in good working order since. After mentioning some factors that herelies upon to determine a vehicle's value, the victim testified that the truck was worthapproximately $5,500 to $6,000. We find that the victim's testimony provided a reasonable basisfor the jury to determine that the value of the truck exceeded $3,000 (see People vFurman, 152 AD3d at 874; People v Helms, 119 AD3d at 1154-1155; People vSheehy, 274 AD2d 844, 845 [2000], lv denied 95 NY2d 938 [2000]; comparePeople v Loomis, 56 AD3d at 1047).
Finally, considering defendant's extensive criminal history and his refusal to acceptresponsibility for his actions, we do not find the sentence to be harsh or excessive (see People v Malloy, 152 AD3d968, 971 [2017], lv denied 30 NY3d 981 [2017]).
Egan Jr., Lynch, Aarons and Pritzker, JJ., concur. Ordered that the judgment is affirmed.