| People v Oliveras |
| 2022 NY Slip Op 01350 [203 AD3d 1233] |
| March 3, 2022 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Manani S. Oliveras, Appellant. |
John R. Trice, Elmira, for appellant, and appellant pro se.
Michael A. Korchak, District Attorney, Binghamton (Rita M. Basile of counsel), forrespondent.
Reynolds Fitzgerald, J. Appeal from a judgment of the County Court of Broome County(Dooley, J.), rendered March 27, 2019, upon a verdict convicting defendant of the crimes ofburglary in the second degree, burglary in the third degree and possession of burglar's tools (twocounts).
Defendant was indicted on two counts of burglary in the second degree and two counts ofpossession of burglar's tools, stemming from two separate incidents, one occurring in the Townof Dickinson, Broome County and the other in the Village of Endicott, Broome County. Prior tothe start of the jury trial, County Court granted the People's motion to reduce the chargepertaining to the Endicott property to burglary in the third degree. Following the trial, defendantwas found guilty on all counts. Defendant was sentenced as a second violent felony offender to aprison term of 10 years with five years of postrelease supervision for his conviction of burglary inthe second degree, to a consecutive prison term of 2
Defendant first contends that the jury's verdict is not supported by legally sufficient evidenceand is against the weight of the evidence. As to the burglary in the second degree conviction,defendant asserts that the property at issue was not a dwelling, he did not go into the structure, hedid not commit a crime and no property was taken. With respect to the burglary in the thirddegree conviction, defendant argues that the People failed to prove that he entered the building asthere were no eyewitnesses, fingerprints or DNA linking him to the crime. Finally, as to theconvictions of possession of burglar's tools, defendant asserts that he lacked the requisiteintent.
"When considering a challenge to the legal sufficiency of the evidence, we view the evidencein the 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 crime charged" (People v Walker, 191 AD3d 1154, 1155 [2021] [internal quotationmarks and citations omitted], lv denied 37 NY3d 961 [2021]; see People v Saylor, 173 AD3d1489, 1490 [2019]). "[W]hen undertaking a weight of the evidence review, [this Court] mustfirst determine whether, based on all the credible evidence, a different finding would not havebeen unreasonable and, if not, then weigh the relative probative force of conflicting testimonyand the relative strength of conflicting inferences that may be drawn from the testimony todetermine if the verdict is supported by the weight of the evidence" (People v Hernandez, 180 AD3d1234, 1235 [2020] [internal quotation marks, brackets and citations omitted], lvdenied 35 NY3d 993[*2] [2020]; see People v Drayton, 183 AD3d1008, 1009 [2020], lv denied 35 NY3d 1065 [2020]).
As charged here, a conviction for burglary in the second degree requires proof that thedefendant knowingly entered or remained in a dwelling with intent to commit a crime therein(see Penal Law § 140.25 [2]). "A person is guilty of burglary in the thirddegree when he [or she] knowingly enters or remains unlawfully in a building with intent tocommit a crime therein" (Penal Law § 140.20). "A person is guilty of possession ofburglar's tools when he [or she] possesses any tool, instrument or other article adapted, designedor commonly used for committing or facilitating offenses involving forcible entry into premises. . . under circumstances evincing an intent to use or knowledge that some personintends to use the same in the commission of an offense of such character" (Penal Law§ 140.35).
The executor of the estate that owned the Dickinson property testified that the house hadbelonged to his recently deceased mother and that he had listed it for sale on June 5, 2018. OnJune 15, 2018, while checking on the property, he noticed that there were "pry bar, crowbarmarks" along the kitchen door of the house. As a result, he bought three motion detector gametrail cameras and placed them in and around the house. On June 16, 2018, he returned to thehouse and saw that molding had been removed from the kitchen door, the doorknob was snappedoff and one of the cameras was lying on a shelf. When he viewed the contents of one of thecameras, he saw that it had captured someone coming into the yard dressed in a hoodedsweatshirt and carrying a backpack. It further showed the person putting gloves on and enteringthe enclosed back porch of the residence. The contents of the camera located inside the porchshowed this same person trying to break into the kitchen door, pulling off his hood and placinghis headlamp on, pulling the molding off the door and waving a crowbar in front of the camera.Lastly, the executor testified that he did not give defendant permission to be at the house and thatno one was residing in the home on June 16, 2018. A detective with the Broome County Sheriff'sDepartment testified that on June 16, 2018, he went to the Dickinson property to process thescene but did not find any evidence, due to defendant's use of gloves. The detective furthertestified that three days later, he conducted an interview with defendant, who admitted that hewas the individual depicted in the camera images.
The caretaker of the Endicott property testified to the events on June 22, 2018. He stated thathe saw a male on the property emerging from between the house and the garage. The caretakerobserved "two big bags on [the person's] shoulders." He then followed the individual across thestreet to a car parked in the Dollar General parking lot. When the car left the lot, the caretaker gotinto his own vehicle and followed it. He obtained the license [*3]number of the vehicle and called 911. Later on, the police took himto Upstate Shredding-Weitsman Recycling (hereinafter Weitsman)[FN*] scrap metal yard where he identified defendantas the male he saw at the Endicott property. The caretaker further testified that when the policeofficer arrived at the Endicott property, he entered the building and found a basement windowthat was "busted out" and lying on the floor of the basement. He also found that copper pipes anddrains were ripped out and removed from the basement. Lastly, the caretaker testified that he didnot give permission for defendant to be at the building on June 22, 2018. A detective with theEndicott Police Department testified that he processed the Endicott property, took variousphotographs at the property, including that of a shoe print, the window that was pushed in andareas where copper pipes had been ripped out and removed from the basement. He alsoconducted an interview of defendant at Weitsman and confiscated the Nike sneakers thatdefendant was wearing as evidence. The detective testified that defendant's shoes matched thethread pattern of the shoe prints that he found at the property. Lastly, the detective testified thatthe bags found in defendant's possession contained, among other items, a telescoping lopper anda 17-inch offset ripping chisel. Defendant's fiancée testified that on the morning of June22, 2018, defendant received a phone call, and then he asked her to take him to the Endicottproperty "to pick something up." She drove him there and parked in the Dollar General parkinglot, and he exited the car and went across the street. She further testified that defendant was gone5 to 10 minutes and, when he returned, he put a duffel bag in the trunk. Defendant then instructedher to go to Weitsman so he could "drop the scrap metal off."
Defendant testified that on June 16, 2018, between the hours of 2:00 a.m. and 3:00 a.m., hewent to the Dickinson property after he was kicked out of his friend's apartment for using drugsbecause he had no place to go. He walked around for a while and went into the property, not toburglarize it but to "get out of the elements" and "to lay [his] head for the night and maybe acouple more nights, if [he] needed to." Defendant further testified that he had no intention ofstealing copper from the Dickinson property, and that this was evident as "[his] loppers weren'twith [him]" and, "[i]n order to be quiet about stealing copper, you needed the loppers."Defendant also testified that, although the bag on his back contained a crowbar and some gloves,as seen in the video, the purpose for the crowbar was to get him "inside the door." As to theEndicott property, defendant testified that he lacked the requisite intent to commit burglary or topossess burglar's tools, as he only cut through the property on his way to a different destinationand he never went inside the building. Defendant further testified that he found [*4]the bag containing the tools in plain sight, grabbed it and thenheaded toward the direction of the vehicle. He did not open the bag until after he got toWeitsman and he had no knowledge of its contents prior to opening it.
Initially, as to defendant's contention that the Dickinson property is not a dwelling, this Courthas previously determined that an "attached, . . . enclosed porch is part of thedwelling because it is structurally and functionally a part of the house" for purposes of a burglaryconviction (People v Rivera, 301 AD2d 787, 788-789 [2003] [citations omitted], lvdenied 99 NY2d 631 [2003]; seePeople v Lancaster, 200 AD3d 1352, 1355 [2021]). Further, a dwelling does not lose itscharacteristic as such simply because an occupant is temporarily absent (see People v Jones, 155 AD3d1111, 1112 [2017], lv denied 31 NY3d 984 [2018]). The Dickinson property hadbeen utilized and occupied as a residence for many years and could have been occupied on thenight of the burglary (see People v Sheirod, 124 AD2d 14, 18 [1987], lv denied70 NY2d 656 [1987]). Moreover, a "building retains its character as a dwelling despite the deathof the occupant when it has been used as a residence in the immediate past" (People vBarney, 294 AD2d 811, 813 [2002] [internal quotation marks and citations omitted],affd 99 NY2d 367 [2003]).
Defendant's assertion that he did not have the intent to commit a crime and did not takeanything from the Dickinson property lacks merit as intent to commit a crime may be inferredfrom the circumstances of the intruder's unlawful entry, unexplained presence at the premises,and actions and statements when confronted by police or the property owner (see People v Vasquez, 71 AD3d1179, 1180 [2010], lv denied 14 NY3d 894 [2010]). As to this property, the trailcamera photographs depicting defendant wearing a hoodie with the hood up and gloves, using ahead lamp and pry bar while removing molding on the door and snapping off the door knob,coupled with the executor's testimony that he did not give permission for defendant to be at or inthe house was legally sufficient evidence to establish defendant's intent to burglarize the property(see People v Ostrander, 46 AD3d1217, 1218 [2007]; People vArmstrong, 11 AD3d 721, 722 [2004], lv denied 4 NY3d 760 [2005]). As to theEndicott property, the testimony of the caretaker and police detective, the photographs depictingthe ransacked condition of the building, the kicked in window, defendant's sneaker matching thefootprint found inside the building and defendant's unauthorized presence was legally sufficientto establish burglary in the third degree (see People v Stetin, 167 AD3d 1245, 1248 [2018], lvdenied 32 NY3d 1178 [2019]; People v Johnson, 38 AD3d 1057, 1058 [2007]; People vPayne, 233 AD2d 787, 789 [1996]). As to possession of burglar's tools, the loppers and prybar found in the bag in defendant's exclusive possession and the photograph depicting defendant[*5]holding the pry bar that was used to attempt to get into theDickinson property create inferences of intent that are legally sufficient to establish possession ofburglar's tools (see People v Latnie,180 AD3d 1238, 1243 [2020]; People v Woodrow, 91 AD3d 1188, 1190 [2012], lv denied18 NY3d 999 [2012]).
As to the weight of the evidence, a different verdict would not have been unreasonable hadthe jury believed defendant's testimony that he did not intend to commit the burglaries, wasunaware of the contents of the bag and there were no eyewitness or DNA evidence placingdefendant inside the Endicott building. However, according deference to the jury's credibilitydetermination and viewing the evidence in a neutral light, we find that the convictions were notagainst the weight of the evidence (see People v Walker, 191 AD3d at 1158; People vSaylor, 173 AD3d at 1492).
Defendant contends that he was deprived of a fair trial due to prosecutorial misconduct. Tothat end, he contends that the People misstated numerous pieces of evidence, shifted the burdenof proof, referred to defendant as a liar and aroused the sympathy of jurors. Defendant'scontention is unpreserved for our review as defendant failed to raise timely and specificobjections at trial (see People v Pitt,170 AD3d 1282, 1284-1285 [2019], lv denied 33 NY3d 1072 [2019]). Were theseissues before us, we would find that the People did not engage in a flagrant and pervasive patternof prosecutorial misconduct as to require reversal (see People v Andrade, 172 AD3d 1547, 1553 [2019], lvdenied 34 NY3d 928 [2019]; Peoplev Cole, 150 AD3d 1476, 1482 [2017], lv denied 31 NY3d 1146 [2018]; People v McCombs, 18 AD3d 888,890 [2005]).
Defendant next contends that he received ineffective assistance of counsel because hisattorney, among other things, only objected twice during the trial, misstated numerous details ofthe case, failed to impeach witnesses and committed errors that cut against their planned strategy."[I]n order to sustain a claim of ineffective assistance of counsel, a court must consider whetherdefense counsel's actions at trial constituted egregious and prejudicial error such that thedefendant did not receive a fair trial. A claim will fail so long as the evidence, the law, and thecircumstances of a particular case, viewed in totality and as of the time of the representation,reveal that the attorney provided meaningful representation" (People v Stover, 178 AD3d 1138, 1147 [2019] [internal quotationmarks and citations omitted], lv denied 34 NY3d 1163 [2020]). A review of the recordreveals that defense counsel effectively cross-examined the People's witnesses, pursued a strategyfrom the beginning that counsel acknowledged on the record was unorthodox—but wasnonetheless his client's theory—called witnesses for the defense, gave cogent opening andclosing statements consistent with defendant's strategy and otherwise presented a zealousdefense. Thus, we [*6]find that defendant received the effectiveassistance of counsel (see People vPorter, 184 AD3d 1014, 1019 [2020], lv denied 35 NY3d 1069 [2020]; People v Kelsey, 174 AD3d 962,966 [2019], lv denied 34 NY3d 982 [2019], cert denied 593 US &mdash, 141 SCt 2607 [2021]).
Defendant lastly asserts that the sentence imposed was harsh and excessive because CountyCourt failed to adequately consider mitigating factors, such as, among other things, the traumaticevents that occurred during his childhood and his drug addiction. "A sentence that falls within thepermissible statutory range will not be disturbed unless it can be shown that the sentencing courtabused its discretion or extraordinary circumstances exist warranting a modification" (People v Gilmore, 177 AD3d1029, 1029 [2019] [internal quotation marks and citation omitted], lv denied 35NY3d 970 [2020]; see People v Cole, 150 AD3d at 1482). Contrary to defendant'sassertion, the record reflects that County Court considered the relevant sentencing factors,including defendant's childhood, background, drug addiction and criminal history. Moreover, thecourt considered its belief that defendant testified falsely. Under these circumstances, we discernno basis upon which to disturb the sentence imposed (see People v Gilmore, 177 AD3d at1030; People v Coppins, 173 AD3d1459, 1464 [2019], lv denied 34 NY3d 929 [2019]; People v Woods, 166 AD3d 1298,1300 [2018], lv denied 33 NY3d 1036 [2019]).
Egan Jr., J.P., Lynch and Pritzker, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:Although the caretaker testifiedthat the police took him to Weitsman Steel, the facility's correct name is UpstateShredding-Weitsman Recycling.