| People v Lafountain |
| 2021 NY Slip Op 06885 [200 AD3d 1211] |
| December 9, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v George Lafountain, Appellant. |
Angela Kelley, Albany, for appellant.
Craig P. Carriero, District Attorney, Malone (Jennifer M. Hollis of counsel), forrespondent.
Reynolds Fitzgerald, J. Appeal from a judgment of the County Court of Franklin County(Champagne, J.), rendered December 10, 2018, upon a verdict convicting defendant of the crimeof criminal trespass in the second degree.
Defendant was charged by indictment with two counts of burglary in the second degreestemming from an altercation he had with the victim and her boyfriend on September 24, 2017 ina garage attached to the victim's residence. Allegedly, defendant unlawfully entered the garage,brandishing several weapons and demanding the return of money that he had paid for a vehiclethat one of the boyfriend's family members sold to him. Following a jury trial, defendant wasacquitted of both counts of burglary in the second degree but was found guilty of one count ofcriminal trespass in the second degree as a lesser included offense. Defendant was sentenced, as asecond felony offender, to 365 days in jail for the misdemeanor. Defendant appeals.
Defendant contends that the verdict was not supported by legally sufficient evidence and wasagainst the weight of the evidence. Specifically, defendant argues that while the victim, herboyfriend and his friend were all present when the trespass allegedly occurred, only the victimand the friend testified at trial. Although they both testified that they did not invite him into thedwelling, defendant contends that it was inappropriate to assume that the boyfriend—thewitness who did not testify at trial—did not invite him into the dwelling. Defendantfurther asserts that the absence of the boyfriend's testimony, coupled with the fact that the Peoplefailed to produce certain text messages at trial, supports his contention that the verdict waslegally insufficient and against the weight of the evidence.
"When reviewing the legal sufficiency of the evidence, this Court must view the evidence inthe light most favorable to the People and evaluate whether there is any valid line of reasoningand permissible inferences which could lead a rational person to the conclusion reached by thejury on the basis of the evidence at trial and as a matter of law satisfy the proof and burdenrequirements for every element of the crimes charged. In contrast, when conducting a weight ofthe evidence review, we must view the evidence in a neutral light and determine first whether adifferent verdict would have been unreasonable and, if not, then weigh the relative probativeforce of conflicting testimony and the relative strength of conflicting inferences that may bedrawn from the testimony to determine if the verdict is supported by the weight of the evidence"(People v Agudio, 194 AD3d1270, 1271 [2021] [internal quotation marks and citations omitted]; see People v Shabazz, 177 AD3d1170, 1171 [2019]). "A person is guilty of criminal trespass in the second degree when. . . he or she knowingly enters or remains unlawfully in a dwelling" (Penal Law§ 140.15 [1]).
Here, the boyfriend's mother testified that defendant was [*2]a friend of her son and that he had purchased a car from a familymember. On September 24, 2017, she received several text messages and telephone calls fromdefendant demanding his money back for the car as it did not run. According to the boyfriend'smother, in these communications, defendant threatened her son's life by saying that "the nexttime that [you] see [your] son he [will] be in a body bag." Both the victim and her boyfriend'sfriend testified that at approximately 9:00 p.m. on September 24, 2017, a car pulled into thevictim's driveway and defendant appeared and stood at the garage door. The boyfriend tolddefendant not to come into the garage. Despite not having permission to enter, defendant openedthe garage door and came inside. Shortly after defendant entered the garage, he pulled whatappeared to be a gun and then a boxcutter out of his pants and pointed both towards the victimand the friend. The victim further testified that earlier in the day, her boyfriend had receivedseveral text messages from defendant asking for his money back for a car that he had boughtfrom her boyfriend's family. Prior to arriving at her house, the victim had texted defendant andtold him he was not getting any money back.
Defendant's mother-in-law testified that, on the night of the incident, she gave defendant aride to the victim's house. She had heard defendant talking on the phone about trying to getmoney back from the boyfriend's mother and thought he was going to the victim's house to getthe money. Defendant's mother-in-law testified that she remained in the vehicle and watcheddefendant walk toward the garage but did not see him enter the garage. Shortly thereafter, thevictim and her mother came out of the garage and screamed at defendant's mother-in-law statingthat they were going to call the police, prompting her to honk the horn for defendant to leave. Shestated that it appeared that defendant and the boyfriend were hugging by the garage door, but shecould not tell if they were inside or outside the garage because she was parked at the end of thedriveway.
"Viewed in the light most favorable to the People, such evidence was legally sufficient toestablish that defendant knowingly and unlawfully entered a dwelling" (People v Degnan, 168 AD3d 1224,1225 [2019]; see People v Jackson,38 AD3d 1052, 1053-1054 [2007], lv denied 8 NY3d 986 [2007]). As to the weightof the evidence, the testimony of the victim established defendant's unlawful entry, and hertestimony was corroborated by two witnesses. The testimony of defendant's mother-in-law failedto refute this. In view of this evidence, we find that a different verdict would have indeed beenunreasonable "and, as such, defendant's claim that the verdict [is] against the weight of theevidence is rejected outright" (People vCloonan, 166 AD3d 1063, 1065 [2018], lv denied 35 NY3d 941 [2020]; see People v Cooper, 199 AD3d1061, 1063-1064 [2021]).
Defendant [*3]asserts that the People violated County Court'spretrial Molineux ruling during their opening statement by changing the substance of thethreat allegedly made by defendant to the boyfriend's mother. Specifically, defendant argues thatthe threat changed from if defendant did not get his money back, he did "not know what wouldhappen to her son" to "[her] son [was] going to be in a body bag." It is well settled that "[t]heMolineux rule requires that evidence of a defendant's prior bad acts or crimes beexcluded unless it is probative of a material issue other than criminal propensity and its probativevalue outweighs the risk of prejudice to the defendant" (People v Williams, 156 AD3d 1224, 1229 [2017] [internalquotation marks and citation omitted], lv denied 31 NY3d 1018 [2018]; see People v Knox, 167 AD3d1324, 1325-1326 [2018], lv denied 33 NY3d 950 [2019]). Such evidence may beadmitted if it falls "within the recognized Molineux exceptions—motive, intent,absence of mistake, common plan or scheme and identity—or where such proof isinextricably interwoven with the charged crimes, provides necessary background or completes awitness's narrative" (People vAnthony, 152 AD3d 1048, 1051 [2017] [internal quotation marks and citations omitted],lv denied 30 NY3d 978 [2017]; see People v Gannon, 174 AD3d 1054, 1058 [2019], lvdenied 34 NY3d 980 [2019]).
Here, evidence of the text messages and telephone calls containing the threat wasinextricably interwoven with the crimes with which defendant was charged and providednecessary background information regarding the nature of defendant's relationship with thevictim and the witnesses and his motive for entering the garage and brandishing the gun and boxcutter (see People v Young, 190AD3d 1087, 1092-1093 [2021], lv denied 36 NY3d 1102 [2021]). The exact wordingof the threat did not alter the substance of the message or that defendant's text messages,telephone calls and threat fell within the Molineux exceptions, and, accordingly, wediscern no error in the admission of the proffered evidence (see People v Anthony, 152AD3d at 1051). To the extent that defendant now asserts a Brady violation for failing topromptly disclose the exact wording of the threat, this contention is presented for the first timeon appeal and is, therefore, unpreserved for our review (see People v Sumpter, 191 AD3d 1160, 1164 [2021], lvdenied 37 NY3d 968 [2021]; Peoplev Fort, 146 AD3d 1017, 1019 [2017], lv denied 29 NY3d 1031 [2017]).
Defendant next contends that County Court committed reversible error when it denieddefendant's request for a missing witness charge relative to the boyfriend's absence at trial.Defendant argues that the boyfriend's testimony was highly relevant to defendant's state of mindand would have shed more light on the circumstances surrounding the incident. Generally, amissing witness charge "allows a jury to draw an unfavorable inference based on a party's failureto [*4]call a witness who would normally be expected to supportthat party's version of events" (People vSmith, 33 NY3d 454, 458 [2019] [internal quotation marks and citation omitted]; see People v Ferguson, 193 AD3d1253, 1258 [2021], lv denied 37 NY3d 964 [2021]). "To warrant a missing witnesscharge, the proponent of the charge must establish that (1) the witness's knowledge is material tothe trial; (2) the witness is expected to give noncumulative testimony; (3) the witness is under thecontrol of the party against whom the charge is sought, so that the witness would be expected totestify in that party's favor; and (4) the witness is available to that party" (People v Brown, 139 AD3d 1178,1179 [2016] [internal quotation marks and citations omitted]; accord People v Martinez, 166 AD3d 1292, 1296 [2018], lvdenied 32 NY3d 1207 [2019]).
County Court properly denied defendant's application for a missing witness charge, astestimony from the boyfriend would have been cumulative to the testimony given by the victimand the friend. The victim, the boyfriend and his friend all observed the incident, includingdefendant's appearance at the dwelling, his entrance into the garage and his brandishing of thegun and box cutter. Defendant's assertion as to how the boyfriend may have testified is purespeculation (see People v Ferguson, 193 AD3d at 1259; People v Brown, 139AD3d at 1179).
Defendant additionally argues that he was denied the effective assistance of counsel due tocounsel's failure to (1) object to hearsay, prejudicial and improper testimony, (2) impeach thevictim's testimony due to an inconsistent statement, and (3) call additional witnesses that couldhave cast further doubt on the witness's version of events. "To establish a claim of ineffectiveassistance of counsel, a defendant is required to demonstrate that he or she was not providedmeaningful representation and that there is an absence of strategic or other legitimateexplanations for counsel's allegedly deficient conduct" (People v Forney, 183 AD3d 1113, 1116 [2020] [internal quotationmarks, brackets and citations omitted], lv denied 35 NY3d 1065 [2020]; see People v Santana, 179 AD3d1299, 1302 [2020], lv denied 35 NY3d 973 [2020]). "This standard is not amenableto precise demarcation and necessarily hinges upon the facts and circumstances of each particularcase. A reviewing court must avoid confusing true ineffectiveness with mere losing tactics andaccording undue significance to retrospective analysis. In short, the [NY] Constitution guaranteesa defendant a fair trial, not a perfect one" (People v Porter, 184 AD3d 1014, 1019 [2020] [internal quotationmarks and citations omitted], lv denied 35 NY3d 1069 [2020]).
As to defense counsel's alleged failure to object to certain aspects of the victim's testimony,because the objections "would have had little or no chance of success, defendant's ineffectiveassistance claim is unavailing" in this regard (People v Terry, 196 [*5]AD3d 840, 847 [2021] [internal quotation marks and citationomitted], lv denied 37 NY3d 1030 [2021]). Moreover, defense counsel did lodge severalobjections to the testimony. Regarding defendant's contention that counsel failed to successfullyimpeach the victim, "[d]efendant was not deprived of effective assistance by his counsel's failureto impeach [the victim] for [a] minor and immaterial inconsistenc[y] in [her] testimony" (People v Cox, 129 AD3d 1210,1215 [2015], lv denied 26 NY3d 966 [2015]). Pertaining to defendant's argument thatcounsel failed to call certain additional witnesses, this concerns matters that are largely outside ofthe record and are therefore more properly pursued in a CPL article 440 motion (see People v Williams, 184 AD3d1010, 1013-1014 [2020], lv denied 35 NY3d 1097 [2020]). Additionally, a strategycan be found in counsel declining to call law enforcement officers who conducted theinvestigation of the incident, as the witnesses would be subject to cross-examination on pointslikely unfavorable to defendant, and this could have interfered with defendant's strategy ofattacking the credibility of both the victim and the boyfriend's mother (see People v Knapp, 138 AD3d1157, 1158-1159 [2016]). Overall, the record reflects that prior to trial, defense counselengaged in appropriate motion practice and filed an application for a missing witness charge. Attrial, counsel made appropriate opening and closing statements, raised numerous objections,engaged in meaningful cross-examination of witnesses and was successful in acquittingdefendant of both felony counts. In these circumstances, we cannot conclude that defendant wasdeprived of meaningful representation (see People v Porter, 184 AD3d at 1019;People v Forney, 183 AD3d at 1118).
"[D]efendant's challenge to County Court's Sandoval compromise is unpreservedgiven his failure to object to the ruling prior to the close of the hearing" (People v Shackelton, 177 AD3d1163, 1166 [2019], lv denied 34 NY3d 1162 [2020]; see People v Pittman, 160 AD3d1130, 1130 [2018], lv denied 31 NY3d 1151 [2018]). Likewise, his best evidenceargument is unpreserved since no objections were made when either the victim or the mothertestified to the text messages (see People v Lofton, 226 AD2d 1082, 1082 [1996], lvdenied upon reconsideration 88 NY2d 1022 [1996]).
Garry, P.J., Lynch, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.