| People v File |
| 2022 NY Slip Op 00077 [201 AD3d 1036] |
| January 6, 2022 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v James File, Appellant. |
Matthew C. Hug, Albany, for appellant.
Mary Pat Donnelly, District Attorney, Troy (George J. Hoffman Jr. of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Rensselaer County (Sober, J.),rendered November 14, 2018, upon a verdict convicting defendant of the crimes of burglary inthe second degree (two counts), menacing in the second degree, stalking in the third degree,criminal mischief in the fourth degree, criminal trespass in the second degree and criminalcontempt in the second degree.
On January 8, 2018, defendant sent his then-paramour (hereinafter the victim) multiple textmessages and voicemails after he discovered a car belonging to the victim's male coworker in hergarage. The next day defendant broke into the victim's home through the front door andthreatened to kill the victim with a gun. Defendant was eventually removed from the victim'shome upon the arrival of the police. In connection with this incident, defendant was charged in amulticount indictment with various crimes. Following a jury trial, defendant was convicted ofburglary in the second degree (two counts), menacing in the second degree, stalking in the thirddegree, criminal mischief in the fourth degree, criminal trespass in the second degree andcriminal contempt in the second degree. County Court thereafter sentenced defendant toconcurrent prison terms, the greatest of which was 12 years, to be followed by three years ofpostrelease supervision. Defendant appeals.
Defendant argues that the convictions for burglary in the second degree, menacing in thesecond degree and stalking in the third degree were not supported by legally sufficient evidencebecause the People failed to prove that he intended to commit a crime in the victim's home orthat he intentionally caused the victim to be in reasonable fear of physical injury.[FN*] The trial evidence reveals that, onJanuary 8, 2018, the victim had received multiple text messages and voicemails from defendant.The victim described these messages and voicemails as "non-stop insulting" and that defendantwas "screaming at [her] and demanding to know whose car was in [her] garage." In the earlyhours of January 9, 2018, the victim heard banging on her door and saw it was defendant. Thevictim testified that, as defendant pounded on the door, she called 911 and tried to hide in herroom and that she was "scared out of [her] mind." Defendant eventually walked into her bedroomand sat on the edge of her bed with a gun demanding an explanation as to her relationship withher coworker. The victim testified that defendant then pointed the gun at her and threated to killher and himself and that defendant told her that "it was all [her] fault." The police eventuallyarrived at the victim's home and secured defendant.
The People also tendered evidence demonstrating that the victim's front door had been"busted in." According to the victim, defendant did not have a key to her home and all of thedoors to her home were locked. The jury additionally heard the recording of the victim's call to911, which had been kept open when [*2]defendant confrontedthe victim in her bedroom. The victim explained that she did not tell the 911 operator thatdefendant had threatened her because she was scared and was trying to calm down defendant.Viewing the trial evidence in the light most favorable to the People and noting that intent may beinferred based upon how defendant entered the victim's home and his conduct therein afterentering (see People v Shamsuddin,167 AD3d 1334, 1334-1335 [2018], lv denied 33 NY3d 953 [2019]; People v Arce, 70 AD3d 1196,1198 [2010]), defendant's legal sufficiency argument is without merit (see People v Brown, 195 AD3d1163, 1166-1167 [2021], lv denied 37 NY3d 1025 [2021]; People v Spinac, 185 AD3d 498,498-499 [2020], lv denied 35 NY3d 1070 [2020]).
As to defendant's weight of the evidence contention, a contrary result would not have beenunreasonable had the jury credited the evidence that defendant came to the victim's apartment forthe purpose of talking about their relationship or his suicidal ideations. That said, the juryapparently rejected this evidence. Viewing the evidence in a neutral light, the challengedconvictions are supported by the weight of the evidence (see People v Porter, 184 AD3d 1014, 1017-1018 [2020], lvdenied 35 NY3d 1069 [2020]; People v Saylor, 173 AD3d 1489, 1492 [2019]; People v Rockefeller, 89 AD3d1151, 1151-1152 [2011], lv denied 20 NY3d 1064 [2013]; People v Beverly, 74 AD3d 1480,1481 [2010], lv denied 15 NY3d 802 [2010]). To the extent that defendant characterizesthe victim's testimony as suspect, deference is given to the jury's credibility assessments andnothing in the record indicates that the victim's testimony was incredible as a matter of law (see People v Bonaparte, 196 AD3d866, 868 [2021], lv denied 37 NY3d 1025 [2021]; People v Bautista, 147 AD3d1214, 1216 [2017]).
Defendant asserts that County Court erred in denying his motion for a mistrial after the juryexpressed that it could not reach a unanimous verdict. We disagree. "The decision to declare amistrial based upon a deadlocked jury necessarily rests in the broad discretion of the trial court,which is best situated to take all the circumstances into account and determine whether a mistrialis in fact required in a particular case" (People v Silver, 168 AD3d 1225, 1227 [2019] [internal quotationmarks, brackets and citations omitted], lv denied 33 NY3d 954 [2019]; see People vBaptiste, 72 NY2d 356, 360 [1988]; People v Cammarere, 204 AD2d 762, 764[1994], lv denied 83 NY2d 965 [1994]).
The record reflects that the jury heard testimony from eight witnesses over the span of threedays. Following lunch on the third day, the jury began its deliberations. The jury continued itsdeliberations on the next business day, but it only did so for approximately 2
Defendant's argument that County Court erred in denying his request that trespass be chargedas a lesser included offense to burglary in the second degree—specifically, count 1alleging that defendant committed a crime under Penal Law § 140.25 (1)—iswithout merit. As the court found, there was no reasonable view of the evidence that wouldsupport the finding that defendant committed trespass but not burglary (see People v Miles, 55 AD3d 955,955-956 [2008], lv denied 11 NY3d 928 [2009]; People v Martinez, 9 AD3d 679, 681 [2004], lv denied 3NY3d 709 [2004]). Defendant contends that the verdict was legally inconsistent but, because hedid not raise this issue prior to the discharge of the jury, his contention is unpreserved (seePeople v Satloff, 56 NY2d 745, 746 [1982]; People v Pearson, 69 AD3d 1226, 1227 [2010], lv denied15 NY3d 755 [2010]). Finally, notwithstanding defendant's lack of a criminal history, the recordfails to disclose an abuse of discretion or extraordinary circumstances warranting a modificationof the imposed sentence (see People vSmith, 140 AD3d 1396, 1398 [2016], lv denied 28 NY3d 936 [2016]; People v Vanness, 106 AD3d1262, 1264-1265 [2013], lv denied 22 NY3d 1044 [2013]).
Garry, P.J., Clark, Reynolds Fitzgerald and Colangelo, JJ., concur. Ordered that the judgmentis affirmed.
Footnote *:Defendant's legal sufficiencyargument, to the extent directed at the menacing in the second degree conviction, is unpreserved(see People v Turner, 172 AD3d1768, 1771 n [2019], lv denied 34 NY3d 939 [2019]).