| People v Brown |
| 2022 NY Slip Op 02205 [203 AD3d 666] |
| March 31, 2022 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Jumel Brown, Appellant. |
Caprice R. Jenerson, Office of the Appellate Defender, New York (Joseph M. Nursey ofcounsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Sheila O'Shea of counsel), forrespondent.
Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered January 11,2018, convicting defendant, after a jury trial, of four counts each of burglary in the second andthird degrees, and sentencing him to an aggregate term of six years, unanimously modified, onthe law, to the extent of vacating the second-degree burglary convictions under counts three andfour of the indictment and dismissing those counts, and remanding for resentencing on theremaining convictions, and otherwise affirmed.
Defendant's convictions under counts three and four of the indictment, regarding the 2017thefts of laptop computers from the Physicians & Surgeons Building at Columbia UniversityMedical Center, were not supported by legally sufficient evidence of the "dwelling" element ofburglary in the second degree (see Penal Law § 140.00 [3]). There was noevidence that patients stayed overnight in this building. The People's reliance on Penal Law§ 140.00 (2) is unavailing, because no "unit" within the building is a dwelling.Although the building was part of a large campus covering several blocks, there was insufficientevidence that this building provided defendant with ready access via connecting elevators,stairwells, or corridors to other buildings, where hospital patients stayed overnight and whichwas, in any event, at a considerable distance (see People v McCray, 23 NY3d 621, 627-630 [2014]).
However, the corresponding third-degree burglary convictions, and the second-degreeburglary convictions involving hospital buildings that undisputedly qualified as dwellings, weresupported by legally sufficient evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). Theevidence supports conclusions that defendant was the man shown in a series of surveillancevideotapes, and that, based on his conduct and the timing of his appearances in or near the roomsfrom where laptops were stolen, he was the person who stole the laptops. The evidence alsoestablished that, although all the buildings in question were open to the public, defendant defieda "lawful order not to enter" (Penal Law § 140.00 [5]), consisting of a trespassnotice excluding him from Columbia University property. This notice's "enforcement did notunlawfully inhibit or circumscribe the defendant from engaging in constitutionally or statutorilyprotected conduct" (People v Leonard, 62 NY2d 404, 411 [1984]). The form did notinfringe on defendant's right to medical treatment because the evidence established that a patientsubject to such a notice would not be turned away for emergency treatment and would be able tocomplete ongoing medical treatment. Therefore, the form's "enforcement" (id.) did notdeprive defendant of any constitutional or statutory right. Moreover, there was no evidence thatdefendant was actually seeking medical treatment at any of the times he entered Columbiaproperty.
The court providently exercised its discretion in admitting the videotape evidence (seegenerally People [*2]v Patterson, 93 NY2d 80, 84 [1999]).Although the authenticating witness was an investigator rather than a technician, he wassufficiently familiar with the work of the technicians and the operations and maintenance of thevideo surveillance system to provide the required testimony (see People v Wilson, 186 AD3d 1166, 1166 [1st Dept 2020], lvdenied 36 NY3d 1054 [2021]). The record gives no reason to doubt that the date and timestamps on these videotapes, depicting defendant at the locations where the victims' laptops weretaken (but not showing him actually stealing them), matched the dates and times when thevictims discovered that their laptops were missing. In any event, such an issue goes to the weightof the videotape evidence, not its admissibility (see People v Sanders, 185 AD3d 1280, 1283 [3d Dept 2020], lvdenied 35 NY3d 1115 [2020]; People v Yanez, 180 AD3d 816 [2d Dept 2020]).
Defendant did not preserve his claim that the People violated their obligations underBrady v Maryland (373 US 83 [1963]), and we decline to review it in the interest ofjustice. As an alternative holding, we find that this claim is unreviewable for lack of a sufficientrecord (see People v McLean, 15NY3d 117, 119 [2010]; People v Kinchen, 60 NY2d 772, 773-774 [1983]).Concur—Renwick, J.P., Gesmer, Singh, Rodriguez, JJ.