| People v Cade |
| 2022 NY Slip Op 01345 [203 AD3d 1221] |
| March 3, 2022 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jeremy J. Cade, Appellant. |
Thomas R. Villecco, Albany, for appellant, and appellant pro se.
Weeden A. Wetmore, District Attorney, Elmira (Nathan M. Bloom of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Chemung County (Baker, J.),rendered January 11, 2018, upon a verdict convicting defendant of the crimes of burglary in thethird degree (three counts), grand larceny in the fourth degree (two counts), criminal mischief inthe third degree, petit larceny and criminal mischief in the second degree (two counts).
In January 2017, three restaurants in Chemung County were burglarized. The third burglaryended in a high-speed police chase, and that chase led to the recovery of a vehicle containing,among other incriminating evidence, proceeds from the two most recent burglaries. After thatvehicle was tied to defendant, he was charged by a nine-count indictment for his involvement inthe foregoing crimes. For the incident at Tag's Restaurant in the Town of Big Flats, defendantwas charged with burglary in the third degree (count 1), grand larceny in the fourth degree (count2) and criminal mischief in the third degree (count 3). For the incident at the Arby's Restaurant inthe City of Elmira, he was charged with burglary in the third degree (count 4) and petit larceny(count 5). For the incident at a Dunkin' Donuts in the Village of Elmira Heights, he was chargedwith burglary in the third degree (count 6), grand larceny in the fourth degree (count 7) and twocounts of criminal mischief in the second degree (counts 8 and 9). Following a jury trial,defendant was convicted as charged, and he was then sentenced, as a second felony offender, toan aggregate prison term of 10
Defendant contends that the jury's verdict was against the weight of the evidence,maintaining that the People failed to establish his identity as a perpetrator of the subject crimesbeyond a reasonable doubt. In assessing whether a verdict is supported by the weight of theevidence, we must first determine whether, "based on all the credible evidence[,] a differentfinding would not have been unreasonable," and, if it would have been reasonable for the jury toreach a different conclusion, then we must "weigh the relative probative force of conflictingtestimony and the relative strength of conflicting inferences that may be drawn from thetestimony" to determine whether "the [jury] has failed to give the evidence the weight it shouldbe accorded" (People v Bleakley, 69 NY2d 490, 495 [1987] [internal quotation marks andcitation omitted]; see People vRomero, 7 NY3d 633, 643-644 [2006]).
"A person is guilty of burglary in the third degree when he [or she] knowingly enters orremains unlawfully in a building with intent to commit a crime therein" (Penal Law§ 140.20). Where a person steals property, that person is guilty of petit larceny(see Penal Law § 155.25), and, where a person steals property and the valueof that property exceeds $1,000, he or she is guilty of grand larceny in the fourth degree(see Penal Law § 155.30 [1]). "A person is guilty of criminal mischief in thethird degree [*2]when, with intent to damage property of anotherperson, and having no right to do so nor any reasonable ground to believe that he or she has suchright, he or she . . . damages property of another person in an amount exceeding[$250]" (Penal Law § 145.05 [2]). When the value of the property damage exceeds$1,500, a person is guilty of criminal mischief in the second degree (see Penal Law§ 145.10).
Defendant's brother, age 17 at the time of the subject crimes, testified for the People as partof a plea agreement and admitted that he and defendant, 10 years his senior, were responsible forthe three burglaries and attendant property damage, acknowledging that he had previously madecertain statements to the contrary. Each of the burglaries was also captured by surveillancecameras. With respect to the incident at Tag's on January 13, 2017, both defendant's brother and astate worker who had met with defendant on a weekly basis since August 2016 identifieddefendant as one of the perpetrators in the restaurant's surveillance video. The getaway vehiclewas also captured on video, and it was later determined that the vehicle was the same color, makeand model as the vehicle registered to defendant's girlfriend at the time. A social media accountassociated with a known alias of defendant was also discovered, and, on January 22, 2017, aphotograph was posted to that account that depicted a large sum of fanned out cash. Anotherpicture posted to that same account depicts defendant wearing a sweatshirt that matches the oneworn by the individual identified as him in the surveillance video. According to a Tag'semployee, over $1,500 was taken during the burglary and approximately $450 in propertydamage was caused.
The next two burglaries occurred during the early morning hours of January 25, 2017. Withrespect to the incident at Arby's, in addition to the testimony of defendant's brother, surveillancecameras at the restaurant captured two perpetrators, one of whom was wearing a unique,distressed pair of designer jeans, and the aforementioned social media account included a recentphotograph of defendant wearing a matching pair of jeans. According to an Arby's employee,exactly $1,000 was missing from the store. With respect to the Dunkin' Donuts incident, anemployee arrived at work at 2:30 a.m. for her shift while the burglary was taking place and called911, relaying that the two perpetrators fled the scene in a Nissan Maxima. That employeefollowed the Maxima in her vehicle until law enforcement caught up to them. A high-speedchase ensued, and, ultimately, the driver of the Maxima drove the vehicle off the road, throughseveral fences and over school athletic fields before coming to a stop, at which point both of thevehicle's occupants fled on foot. Approximately $2,100 was stolen from Dunkin' Donuts andover $1,500 in damage was caused to the property. Approximately $5,000 in damage was causedto the property of a local high school [*3]as a result of the policechase.
A search of the Maxima resulted in the recovery of a pry bar, a sledgehammer, cash androlled coins, cash register bins, bank bags belonging to Arby's and a box used to hold currencybearing the Dunkin' Donuts logo. The vehicle was determined to be registered to a woman whotestified that she had lent her vehicle to defendant earlier that evening upon the request of amutual friend and in exchange for $100. She also testified that none of the foregoing items werein her vehicle before it was borrowed. Although the vehicle's owner identified defendant at trialas the individual who borrowed her vehicle, she had been unable to identify him in a pretrialphoto array, explaining that she had just recently met defendant. She further stated that on thenight of the burglaries it was dark, and defendant was wearing a hooded sweatshirt that preventedher from getting a clear view of his face. Text messages between defendant and theaforementioned mutual friend confirm much of the foregoing, and the mutual friend testified thatdefendant called her the morning after the Arby's and Dunkin' Donuts burglaries to explain thathe had taken the borrowed vehicle on a high-speed police chase and was on his way out of thestate.
The jury could have discredited the testimony of defendant's brother given that he had madeprior contradictory statements about defendant's involvement in the subject crimes and wastestifying for the People pursuant to the terms of a plea agreement, and another verdict thereforewould not have been unreasonable here. However, viewing the evidence in a neutral light andaccording deference to the jury's credibility assessments, we find defendant's identity as aperpetrator of the subject crimes to have been proven beyond a reasonable doubt and each of hisconvictions to be amply supported by the weight of the evidence (see Penal Law§§ 140.20, 145.05 [2]; 145.10, 155.25, 155.30 [1]; People v Fomby, 101 AD3d 1355,1355-1356 [2012]; People v Brown,62 AD3d 1089, 1090-1091 [2009], lv denied 13 NY3d 742 [2009]; People v Barringer, 54 AD3d 442,443 [2008], lv denied 11 NY3d 830 [2008]).
Defendant also contends that County Court erred in denying his pretrial motion to dismissthe indictment upon the ground that he was not given a reasonable amount of time prior to thegrand jury proceeding to consult with counsel as to whether he should testify. However,defendant, who was the subject of an active arrest warrant, had not been arraigned "in a localcriminal court upon a currently undisposed of felony complaint" charging him with the offensesthat were to be the subject of the pending grand jury proceeding, and the People therefore had noduty to inform him of his right to testify thereat (CPL 190.50 [5] [a]; see People v Martin, 132 AD3d909, 910 [2015], lv denied 26 NY3d 1110 [2016]; People v Small, 112 AD3d 857,858 [2013], mod 26 NY3d 253 [2015]; People v Maddox, 31 AD3d 970, 973 [2006], lv [*4]denied 7 NY3d 868 [2006]). Defendant's claim that the Peopleviolated their Rosario obligation by not turning over evidence of the aforementionedphoto array until the morning before the start of trial is unpreserved (see People vRogelio, 79 NY2d 843, 844 [1992]; People v Bottomley, 146 AD3d 1026, 1027 [2017], lvdenied 29 NY3d 947 [2017]; Peoplev Torres, 96 AD3d 881, 882 [2012], lv denied 20 NY3d 1065 [2013]) andmeritless (see CPL former 240.45).
In addition, defendant has failed to meet his burden on his pro se ineffective assistance ofcounsel claim. The allegations underlying his claim appear to be almost exclusively premisedupon matters outside of the record, such as defense counsel's alleged failure to investigate, andthe claim is therefore more properly the subject of a CPL article 440 motion (see People v McCoy, 198 AD3d1021, 1023 [2021], lv denied 37 NY3d 1162 [2022]; People v Horton, 173 AD3d 1338,1341 [2019], lv denied 34 NY3d 933 [2019]; People v Rawlinson, 170 AD3d 1425, 1429 [2019], lvdenied 33 NY3d 1107 [2019]). The record that is before us reflects that defense counselengaged in appropriate pretrial motion practice, advanced a trial strategy of attacking thecredibility of the People's witnesses through effective cross-examination and successfullyadvocated for a predicate sentencing status rather than the persistent felony offender status thathad been sought by the People.
We lastly do not find defendant's aggregate sentence of 10
Lynch, Aarons and Reynolds Fitzgerald, JJ., concur. Ordered that the judgment isaffirmed.