| People v Brown |
| 2021 NY Slip Op 03633 [195 AD3d 1163] |
| June 10, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v David Brown, Appellant. |
Mark Diamond, Albany, for appellant.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.
Pritzker, J. Appeal from a judgment of the Supreme Court (Lynch, J.), rendered September20, 2018 in Albany County, upon a verdict convicting defendant of the crime of burglary in thesecond degree.
Following a jury trial, defendant was convicted of burglary in the second degree stemmingfrom the theft of a television from an apartment located at 216 Ontario Street in the City ofAlbany. Supreme Court thereafter sentenced defendant to a prison term of 3
Defendant challenges the verdict as legally insufficient and against the weight of theevidence claiming that the People failed to prove beyond a reasonable doubt that he in factentered the apartment and that he had the requisite intent to steal the television, as he wasoperating under the belief that his companion lived in the apartment and owned the television."When considering a challenge to the legal sufficiency of the evidence, [this Court must] viewthe evidence in the light most favorable to the People and evaluate whether there is any valid lineof reasoning 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 Hernandez, 180 AD3d1234, 1235 [2020] [internal quotation marks and citations omitted], lv denied 35NY3d 993 [2020]; see People vNunes, 168 AD3d 1187, 1187-1188 [2019], lv denied 33 NY3d 979 [2019]). "Inreviewing whether a conviction is supported by the weight of the evidence, we decide whether,based on all the credible evidence, a different finding would not have been unreasonable, andthen, like the trier of fact below, weigh the relative probative force of conflicting testimony andthe relative strength of conflicting inferences that may be drawn from the testimony" (People v Maeweather, 172 AD3d1646, 1647 [2019] [internal quotation marks and citations omitted], lv denied 34NY3d 1017 [2019]; see People vSaylor, 173 AD3d 1489, 1490 [2019]).
As relevant here, a person is guilty of burglary in the second degree when he or sheknowingly enters a dwelling with the intent to commit a crime therein (see Penal Law§ 140.25 [2]; see People vStrauss, 155 AD3d 1317, 1318 [2017], lv denied 31 NY3d 1122 [2018]).Further, "[a]s relevant to accessorial liability, when one person engages in conduct whichconstitutes an offense, another person is criminally liable for such conduct when, acting with themental culpability required for the commission thereof, he or she . . . intentionallyaids such person to engage in such conduct" (People v Chapman, 182 AD3d 862, 864 [2020] [internal quotationmarks and citations omitted]; see People v Strauss, 155 AD3d at 1318).
The trial testimony provided by the three occupants of the apartment from which thetelevision was stolen established that their apartment was located on the second [*2]floor of the house at 216 Ontario Street. Two of the residentsreported hearing footsteps pass by their bedrooms on the morning of the burglary, atapproximately the same time. Video evidence admitted at trial placed defendant and hiscompanion walking towards the apartment at approximately 5:34 a.m. on the morning of theburglary. Footage from the City's surveillance cameras then captured the two men walking awayfrom the general direction of the apartment approximately 10 minutes later, with defendantcarrying a television. As a car approached from behind the two men, defendant placed thetelevision against a building amid bushes as the other man continued on, walking out of thecamera's view. Defendant then turned to face the street as he watched the car drive by. Defendantbriefly walked out of the camera's view, before returning seconds later with the other man.Defendant retrieved the television and the two proceeded on in the same direction.
The People also admitted into evidence excerpts of recorded telephone calls betweendefendant and his girlfriend that he had placed from jail. In these calls, defendant identified hiscompanion as a man named "King" and, in the first recorded call, defendant described that Kinghad asked defendant to go with him to pick something up, and that defendant thought theapartment was "maybe [King's] house." However, defendant then stated that he knew whosehouse it was, and that he "should have known it wasn't [King's]." In a later call, defendantadmitted that he "obviously did know better but just did the wrong thing anyway." Defendantalso acknowledged that he knew who the television was ultimately sold to and that he hadreceived a small payment from King for his assistance. Although defendant explained that hecould not remember much of that day, he acknowledged that "it was King's mark." Noting thatKing had passed away a week after the burglary, defendant stated, "[T]his is a saving grace. Alsoa bit of a problem, but in the long run, I don't have somebody who's going to tell on me and then,of course, he committed burglary and it all falls on him." In another call, defendant framed hisconduct as an "effect of [his] addiction" and described this as "another option" for his defense "ifit doesn't go the way we want it to go."
Defendant testified on his own behalf and explained that, on the morning of the burglary, heended his shift as a line cook at 2:30 a.m., went home, took unprescribed Xanax and then went toa local corner store, where he ran into King, whom he had known for a few years. Defendantstated that, at the time, he had a problem with substance abuse and was drinking heavily.Defendant testified that King asked him to help move a television and that King "didn't specifywhere to or where from." Defendant agreed, in the hopes of getting drugs in return for hisassistance. As the two set out, defendant claimed that he was "under the assumption" that theywould be picking [*3]up the television from King's house,although he did not know where King lived at the time. When they arrived at 216 Ontario Street,defendant reported that King told him to wait outside. Defendant testified that he did not knowwho lived there. Defendant described that King entered the house through the front door andreemerged with a television, which defendant then offered to carry due to its size. Defendantwent on to testify that, as the two walked with the television, it began to rain, so he put thetelevision down under some bushes while King looked for something to cover it with. Realizingthat the two were close to defendant's apartment, defendant offered to use something of his ownto protect the television from the rain. Defendant stated that the two then walked to his house,that he found a tarp or sheet to wrap the television in and the two then proceeded to walkdowntown, where King then sold the television. Explaining that King often "peddle[d] his thingsto get money," defendant claimed that he never suspected that King was in fact committing acrime. On cross-examination, defendant claimed that, although he had stated in conversationswith his girlfriend that he knew who lived at 216 Ontario Street, he did not actually know wholived there.
Based on the foregoing, defendant's conviction on a theory of accessorial liability issupported by legally sufficient evidence. Notably, defendant does not challenge that the burglaryoccurred in his presence or that he possessed the stolen television. Rather, he claims that he didnot enter the apartment and was not otherwise aware that King did not have the right to possessthe television. However, defendant admitted in conversation with his girlfriend that he knew wholived in the house and described the incident as King's "mark," suggesting that defendant wasindeed aware of the illegal purpose of their visit to the apartment. Defendant went so far as toexpress to his girlfriend that he knew better, but chose to participate regardless. Further, thevideo footage of defendant seeming to hide the television as a car passed by him and King asthey left the area of the apartment suggests that defendant knew that he was not supposed topossess the television (see People v La Furno, 104 AD2d 1008, 1008 [1984]; see generally People v Spencer, 152AD3d 863, 866 [2017], lv denied 30 NY3d 983 [2017]). Given these details, a validline of reasoning and permissible inferences could lead a rational person to conclude thatdefendant had the requisite intent to steal the television, permitting the jury to find him guiltyeven in the absence of evidence demonstrating that he physically entered the apartment at 216Ontario Street (see People vShamsuddin, 167 AD3d 1334, 1335 [2018], lv denied 33 NY3d 953 [2019];see People v Strauss, 155 AD3d at 1319; People v Gage, 259 AD2d 837, 838-839[1999], lv denied 93 NY2d 924 [1999], lv denied upon reconsideration 93 NY2d970 [1999]; People v McDonald, 257 AD2d 695, 696 [1999], lv denied 93 NY2d[*4]876 [1999]).
Turning to the weight of the evidence, a different verdict would not have been unreasonableinasmuch as no direct evidence placed defendant in the apartment and the jury could havecredited defendant's testimony that he was unaware of King's illegal conduct (see People v Porter, 184 AD3d1014, 1017 [2020], lv denied 35 NY3d 1069 [2020]). However, the jury appears tohave found defendant's explanation that he did not enter the apartment and did not know that thetelevision was stolen disingenuous given the comments he made during the telephone call withhis girlfriend (see id. at 1017-1018). Therefore, according great deference to the jury'scredibility determination, and viewing the evidence in a neutral light, we find that the verdict issupported by the weight of the evidence (see People v Walker, 191 AD3d 1154, 1158 [2021]; People vPorter, 184 AD3d at 1018; People v Gage, 259 AD2d at 839).
Defendant's contention that Supreme Court erred by admitting his recorded phoneconversations placed from jail because he had no notice that his calls were being recorded isbelied by the record. "As a number of courts have explained, where detainees are aware that theirphone calls are being monitored and recorded, all reasonable expectation of privacy in thecontent of those phone calls is lost, and there is no legitimate reason to think that the recordings,like any other evidence lawfully discovered, would not be admissible" (People v Diaz, 33 NY3d 92,99-100 [2019] [internal quotation marks and citations omitted], cert denied 589 US&mdash, 140 S Ct 394 [2019]; seePeople v Russ, 162 AD3d 1306, 1306 [2018]). In introducing the recordings, the Peoplecalled an officer with the Albany County Sheriff's office who testified that all phone calls madeto or from an inmate at the Albany County Correctional Facility are recorded, with the exceptionof certain privileged communications. The officer explained that the recording system used tomonitor the phone lines at the facility has a mechanism in place that notifies both parties that allcalls may be recorded and monitored. The officer described that the parties have to press a certainnumber accepting those terms in order for the call to connect. The officer explained that, if therecording system is not working properly, it will not allow calls to connect or continue. Notably,one of the recordings in question that was played at trial includes the warning provided by therecording system, which clearly states that the call is "subject to monitoring and recording."Significantly, in his own testimony, defendant also acknowledged that he was aware that thephone calls that he placed from the jail were being recorded and could be reviewed by lawenforcement. Thus, it is clear from the record that defendant was aware that the phone calls werebeing recorded and, as such, he had no reasonable expectation of privacy over them (seePeople v Diaz, 33 NY3d at 99-100; People v Russ, 162 AD3d at [*5]1306). To the extent that defendant argues that the admission of thephone calls violated his rights because he was being held on bail rather than serving a sentence,the Court of Appeals has yet to differentiate as to the applicable constitutional standard asbetween phone calls placed by those individuals held on bail and those who are serving sentences(see People v Diaz, 33 NY3d at 95-96; People v Johnson, 27 NY3d 199, 206 [2016]). As such, therecordings were properly admitted.
Finally, defendant asserts that comments made by the prosecutor during summationconstitute prosecutorial misconduct. However, as defendant concedes, this argument is notpreserved as his trial counsel did not object at trial (see CPL 470.05 [2]; People v Andrade, 172 AD3d1547, 1553 [2019], lv denied 34 NY3d 928 [2019]). Were this issue before us, wewould find that the challenged comments constituted fair comment on the evidence (see People v Johnson, 183 AD3d77, 90 [2020], lv denied 35 NY3d 993 [2020]), and, even if any of the remarks wereimproper, "they were not so pervasive or flagrant as to require a reversal" (People v Johnson, 151 AD3d1462, 1466 [2017] [internal quotation marks and citations omitted], lv denied 30NY3d 1106 [2018]). Defendant also argues that trial counsel was ineffective based solely uponthe failure to object to the challenged comments. However, "because any such objections wouldhave had little or no chance of success, defendant's ineffective assistance claim is unavailing"(People v Andrade, 172 AD3d at 1554; see People v Caban, 5 NY3d 143, 152 [2005]).
Garry, P.J., Egan Jr., Aarons and Reynolds Fitzgerald, JJ., concur. Ordered that the judgmentis affirmed.