| People v Cason |
| 2022 NY Slip Op 01481 [203 AD3d 1309] |
| March 10, 2022 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Donnie L. Cason II, Appellant. |
Rural Law Center of New York, Castleton (Keith F. Schockmel of counsel), forappellant.
Patrick A. Perfetti, District Attorney, Cortland, for respondent.
Colangelo, J. Appeal from a judgment of the Supreme Court (Campbell, J.), rendered June 4,2018 in Cortland County, upon a verdict convicting defendant of the crimes of burglary in thesecond degree, criminal mischief in the fourth degree, harassment in the second degree, criminalcontempt in the second degree (22 counts) and tampering with a witness in the fourthdegree.
In June 2017, defendant was charged by indictment with burglary in the second degree, twocounts of criminal contempt in the first degree, criminal trespass in the second degree, criminalmischief in the fourth degree and harassment in the second degree based on allegations that, onJanuary 20, 2017, he forcibly entered the residence of the mother of his children (hereinafter thevictim) and harassed the victim in violation of an extant order of protection issued in her favor.In October 2017, defendant was charged in a separate indictment with 22 counts of criminalcontempt in the first degree and tampering with a witness in the fourth degree, based ondefendant's alleged intentional violations of an order of protection issued on January 21, 2017and his attempts to dissuade the victim from testifying before a grand jury regarding the facts andcircumstances of the January 20, 2017 incident. The People moved successfully to consolidatethe two indictments, and a jury trial ensued in the Integrated Domestic Violence part of SupremeCourt. Following a jury trial, defendant was convicted of burglary in the second degree, criminalmischief in the fourth degree, harassment in the second degree, 22 counts of criminal contempt inthe second degree and tampering with a witness in the fourth degree. He was thereaftersentenced, as a second felony offender, to eight years in prison, to be followed by five years ofpostrelease supervision, on the burglary conviction and to various lesser concurrent prison termson the remaining convictions. Supreme Court also issued a full stay-away order of protection infavor of, among others, the victim and their two children. Defendant appeals.
Defendant contends that his conviction for burglary in the second degree is not supported bylegally sufficient evidence and is against the weight of the evidence as there was insufficientproof establishing that he possessed the requisite intent to commit a crime upon his entry into thevictim's residence. Although defense counsel moved for a trial order of dismissal at the close ofthe People's proof, as counsel failed to renew said motion "after the presentation of [the] defensecase, defendant failed to preserve his legal sufficiency challenge" (People v Walker, 190 AD3d 1102,1103 [2021], lv denied 37 NY3d 961 [2021]; see People v Lane, 7 NY3d 888, 889 [2006]). "Nevertheless, as partof our weight of the evidence review, we necessarily determine whether the People proved eachelement of the charged crimes beyond a reasonable doubt" (People v Walker, 190 AD3dat 1103 [citations omitted]; see People vSerrano, 200 AD3d 1340, 1341-1342 [2021]; People v Barzee, 190 AD3d 1016, 1017 [2021], lv denied36 NY3d 1094 [2021]). "In a weight of the evidence analysis, we view the evidence in a neutrallight and determine whether a different verdict would have been unreasonable; if a differentverdict would not have been unreasonable, we weigh the relative probative force of conflictingtestimony and the relative strength of conflicting inferences that may be drawn from thetestimony to determine if the verdict is supported by the weight of the evidence" (People v Ferguson, 193 AD3d1253, 1254 [2021] [citations omitted], lv denied 37 NY3d 964 [2021]; see People v Danielson, 9 NY3d342, 348 [2007]; People v Bleakley, 69 NY2d 490, 495 [1987]). In conducting thisanalysis, "[g]reat deference is accorded to the fact-finder's opportunity to view the witnesses, hearthe testimony and observe demeanor" (People v Bleakley, 69 NY2d at 495; see People v Cubero, 160 AD3d1298, 1300 [2018], affd 34 NY3d 976 [2019]).
For defendant to be found guilty of burglary in the second degree as charged in theindictment, the People were required to prove that defendant "knowingly enter[ed] orremain[ed]" in the victim's home unlawfully with the "intent to commit a crime therein" (PenalLaw § 140.25 [2]). "A person 'enters or remains unlawfully' in or upon premiseswhen he [or she] is not licensed or privileged to do so" (Penal Law § 140.00 [5]).Since the People did not expressly limit their theory of liability to the intent to commit a specificcrime, there was "no requirement that the People allege or establish the particular crime that. . . defendant intended to commit upon entering the dwelling" (People v Taylor, 163 AD3d 1275,1276 [2018], lv denied 32 NY3d 1068 [2018]). "[A] defendant's intent to commit a crimemay be properly inferred from, among other things, the circumstances of the entry, his or herunexplained presence in the [dwelling] and his or her actions and statements while on thepremises" (People v Saylor, 173AD3d 1489, 1491 [2019] [internal quotation marks, brackets and citations omitted]; see People v Lewis, 5 NY3d 546,552 [2005]; People v Hajratalli, 200AD3d 1332, 1336 [2021]). Notably, " 'the intent necessary for burglary can beinferred from the circumstances of the entry itself' " (People v Kelly, 202 AD3d 1158, 1160 [2022], quoting People vMackey, 49 NY2d 274, 280 [1980]).
The evidence at trial established that defendant and the victim were the parents of twodaughters. Earlier in the day, on January 20, 2017, the victim came home from the hospital aftergiving birth two days earlier to their second daughter by cesarean section. Her activities wererestricted, and defendant was at the residence to help her and take care of their older child. Thevictim's mother took defendant and the victim to see their newborn at the hospital and, upon theirreturn, defendant, the victim's brother and the boyfriend of the victim's mother picked up dinnerfor the family at Kentucky Fried Chicken. Upon their return, defendant argued with the victimabout having paid for the dinner with a small amount of money in his bank account and nothaving been reimbursed as promised. After dinner, defendant bathed the older child and helpedput her to sleep. He and the victim argued again. Defendant went into the kitchen and packed upthe remaining food to take to his apartment. Defendant and the victim's mother argued about thefood, and, at her request, defendant left the residence. After leaving, defendant repeatedlytelephoned the victim, but she did not take his calls. She text-messaged defendant that she was inpain and was worried about their newborn, and she asked him to stop calling. While at hisapartment, defendant took Adderall and gulped down four to five ounces of brandy; he thenwalked back to the victim's residence. The front door had been locked, preventing his reentry,and defendant rattled the door handle, stating, "[L]et me in this house. I am going to enter thishouse." He ignored orders that he leave and, instead, rang the doorbell and pounded on the doorseveral times. He then proceeded to a living room window and pounded on it until the glassshattered and he gained entry. After he entered the house, defendant went into the kitchen andshoved the victim's mother, who had been standing protectively in front of the victim, to thefloor. He then grabbed the victim and "attacked [her] to the ground." After she got up and walkedby the refrigerator, "he started coming after [her] again . . . and then he wasscreaming at her . . . and he kept slamming [her] against the [fire extinguisher onthe] wall." The victim testified that her head hit the fire extinguisher and this happened at leastseven or eight times. The victim testified that she felt numb and scared, and she hurteverywhere.
The victim's mother testified that she lives with the victim and her two granddaughters andthat defendant does not live there nor does he have a key or get mail delivered there. The victim'smother testified that, upon hearing noises in the living room, she initially ran in there but wentback into the kitchen and positioned herself in front of the victim to protect her because "[she]knew something was going to happen." The victim's mother testified that she was "[s]cared,overwhelmed [and] worried." The victim's mother testified that, during the incident, the victim'sglasses had "flung off," and defendant "pushed [the victim] up against the wall knowing she justhad [a cesarean] section." As the victim got up, defendant "pulled [her] back down." She and thevictim were crying; she "was scared for [the victim's] life." According to the victim's mother,defendant ran out of the house while she was on the phone with the 911 dispatcher, and, as heleft, he tried to grab her hand that held the phone. According to the victim and her mother, therewas shattered glass on the carpets, the floors, the couch and in the baby's bassinet. The furniturewas in disarray and the curtains on the broken window were ripped down and laying over thecouch. The victim's glasses were broken and were found underneath the stove. The victim'smother also testified that defendant did not have permission to return to the house thatevening.
Cheyenne Cute, a sergeant with the City of Cortland Police Department, testified that she andtwo other officers responded to the residence. She observed a 4 feet by 4 feet picture window thathad been smashed out and there was glass on the couch and on the living room floor. Cute thenspoke to the victim and her mother and learned that defendant had repeatedly smashed thevictim's head into a fire extinguisher on the kitchen wall. Cute described the victim's demeanoras "[u]pset, very upset, scared . . . [and] [j]ust extremely upset, distraught." Cutethen took photographs of the scene, which were admitted as evidence during the trial. Defendantwas arrested shortly after the incident.
Defendant testified on his own behalf. He explained that he was arguing with the victiminitially because he was upset that he was not reimbursed for the cost of the dinner fromKentucky Fried Chicken. After dinner, defendant gave the older child a bath and put her to bed.Once the child was asleep, defendant went downstairs to see if the victim needed anything andwent upstairs and started watching a video. He recounted that the victim came upstairs and gavehim an attitude because he did not bring a pillow and blanket downstairs for her—heclaimed not to have heard the request—and he became upset because his efforts to be agood father were going unnoticed. Defendant further testified that he decided to go back to hisapartment for the night, so he went into the kitchen and started packing up the leftovers forhimself and his roommates. As defendant was walking to his apartment, he called the victimrepeatedly, feeling remorse for having left the victim and the older child, particularly because thevictim's activities were limited due to the surgery. The victim did not answer her phone andtext-messaged back in a rude and upsetting manner, causing him to feel worse. As he walkedback to the victim's residence after ingesting pills and alcohol, he continued to call the victim.She text-messaged him that she did not want the drama or the problems.
Once back at the house defendant became distraught when he found the door to be locked,explaining that there is usually an open-door policy where he can just walk in and out. Headmitted that he started banging on the door and ringing the doorbell. He then walked to theliving room window and observed the victim's mother yelling at the victim and telling her not toopen the door. He observed the victim walk into the kitchen and he began banging on thewindow, yelling for her to answer the phone, and "the next thing [he] kn[ew] the window gaveway." Defendant testified that after he landed inside, the mother's boyfriend grabbed him and hetried to get away from him. He did not try to hurt anyone in the house and tried to leave throughthe kitchen, but everyone thought that he was going to attack the victim and they blocked hisway, thwarting his efforts to leave through the front door. As he was trying to leave, the victim'smother grabbed him while she was on the phone with the police and he pushed her away, in orderto leave. He testified that he entered to talk to the victim and resolve things and did not intend tocommit a crime.
On this record, an acquittal on the burglary count would not have been unreasonable had thejury resolved the credibility issues differently. According great deference to the jury's credibilitydeterminations and viewing the evidence in a neutral light, and considering the inferences thatmay properly be drawn from, among other things, the circumstances of the entry, we are satisfiedthat the burglary conviction is supported by the weight of the evidence (see People v File, 201 AD3d 1036,1038 [2022]; People v Walker, 191AD3d 1154, 1158 [2021], lv denied 37 NY3d 961 [2021]).
Defendant also contends that County Court committed reversible error when it failed toprovide a meaningful response to the following questions posed by the jury in a single note: "[I]f[defendant]'s only intent in entering the dwelling was to talk to [the victim] who did not want totalk to him, does that qualify as intent to commit a crime?" and "Does the act of breaking theglass on the window and entering the dwelling constitute intent to commit a crime." "It is wellestablished that a trial court's 'core responsibility' upon receiving a substantive jury inquiry duringdeliberations in a criminal trial is to provide counsel with 'meaningful notice' of the note'sspecific content and to give the jury a 'meaningful response' " (People v Johnson, 183 AD3d 77,81 [2020], lv denied 35 NY3d 993 [2020], quoting People v Kisoon, 8 NY3d 129, 134 [2007]; see CPL310.30). The trial court has a statutory obligation to respond to jury requests for clarificationmade "[a]t any time during [the jury's] deliberations" (CPL 310.30). "[T]he court has significantdiscretion in determining the proper scope and nature of the response" (People v Taylor, 26 NY3d 217,224 [2015]), and " 'must perform the delicate operation of fashioning a response whichmeaningfully answers the jury's inquiry while at the same time working no prejudice to thedefendant' " (People v Lee,183 AD3d 1183, 1188 [2020], lv denied 35 NY3d 1114 [2020], quoting People vWilliamson, 267 AD2d 487, 489 [1999], lv denied 94 NY2d 886 [2000]). Inanalyzing whether that discretion was abused, " '[t]he factors to be evaluated are the formof the jury's question, which may have to be clarified before it can be answered, the particularissue of which inquiry is made, the supplemental instruction actually given and the presence orabsence of prejudice to the defendant' " (People v Lee, 183 AD3d at 1188,quoting People v Malloy, 55 NY2d 296, 302 [1982], cert denied 459 US 847[1982]).
It was agreed at the charge conference that the general charge would include an expandeddefinition on intent, as contained in the Pattern Jury Instructions. Upon receipt of the foregoingnote from the jury, Supreme Court held a conference with both counsel and then reread theexpanded definition of intent; over defense counsel's objection, the court then gave a secondinstruction entitled "Jury as Trier of Facts" (see 1 Howard Leventhal, Charges to the Juryand Requests to Charge in a Criminal Case in New York § 4:56, Jury as Trier ofFacts [Oct. 2021 Update]). In reading the original and supplemental charges, the courtemphasized to the jury that its questions were factual questions that the court could not properlyanswer. The court elected to read the supplemental charge explaining to the jury that it is the soleand exclusive judge of the facts, the credibility of the witnesses and the guilt or innocence ofdefendant. We find that Supreme Court meaningfully responded to the jury's note. By its electionto charge the jury as to its role as the trier of fact and refrain from any answer that could beconstrued as the court's opinion regarding defendant's intent, the court "satisfied [its] obligationto fashion a meaningful response to the jury's request without causing prejudice to defendant"(People v Lee, 183 AD3d at 1191).
Defendant finally contends that his prison sentence is harsh and excessive. He furthercontends that the circumstances did not warrant the imposition of an order of protectionprohibiting him from seeing his children for eight years. "It is well settled that a sentence thatfalls within the permissible statutory ranges will not be disturbed unless it can be shown that thesentencing court abused its discretion or that extraordinary circumstances exist warranting amodification in the interest of justice" (People v Walker, 191 AD3d at 1160 [internalquotation marks and citations omitted]; see People v Patterson, 199 AD3d 1072, 1076 [2021], lvdenied 37 NY3d 1163 [2022]). The transcript of the sentencing hearing reflects that SupremeCourt considered, among other things, defendant's lengthy criminal history involving crimesagainst people and property, his numerous violations of orders of protection, most recently withrespect to the victim, and his lack of remorse. The court further took notice of mitigating factorssuch as defendant's difficult childhood and lack of family support during the trial. Consideringthe foregoing, as well as the violent nature of defendant's behavior and the fact that the sentenceimposed was significantly less than the maximum term allowed (see Penal Law§ 70.02 [1] [b]; [3] [b]; People v Gilmore, 177 AD3d 1029, 1029-1030 [2019], lvdenied 35 NY3d 970 [2020]), we discern no extraordinary circumstances or abuse ofdiscretion that would warrant modification of the prison sentence (see People v Infinger, 194 AD3d1183, 1188 [2021], lv denied 37 NY3d 965 [2021]; People v Porter, 184 AD3d 1014,1020 [2020], lv denied 35 NY3d 1069 [2020]). As to the court's issuance of the order ofprotection in favor of, among others, the parties' children, to the extent that defendant's challengewas preserved by his request that the court carve out an exception to the order to allow forvisitation with his older child, we find the challenge to lack merit. As the children live with thevictim and in light of defendant's propensity to violate orders of protection, the determination toissue the order of protection was not an abuse of discretion (see People v Creech, 165 AD3d 1491, 1494 [2018]).
Garry, P.J., Egan Jr. and Aarons, JJ., concur. Ordered that the judgment is affirmed.