Thе People of the State of New York, Respondent, v Jeremy R. Bost, Appellant.
Appellate Division of the Supreme Court of New York, Third Department
May 26, 2016
32 N.Y.S.3d 385 | 140 A.D.3d 1317
Defendant, along with two codefendants, was charged in a nine-count indictment for a series of events stemming from three home invasions occurring over the coursе of three days in
Defendant contends that the evidence was legally insufficient to support his convictions and the verdict was against the weight of the evidence. Insofar as is relevant to the issues that defendant raises on appeal, a necessary element for both burglary in the first degree and robbery in the first degree is that the defеndant or another participant possessed a “deadly weapon” (see
With respect to the home invasion that occurred on the late evening/early morning of January 11 and 12, 2012, David Chrapowitzky testified that he woke up when he heard people in the hallway outside of his bedroom. When he gоt up and went into the hallway, he turned on the light and saw two men, both wearing masks, who “spun around, came directly down the hall towards [him and] brought up pistols.” Chrapowitzky also testified that while he was in the hallway, he heard “the sound of a shell being . . . moved into a chamber.” Barbara Chrapowitzky, David Chrapowitzky‘s wife, testified that she was woken up by the sound of her husband confronting the two intruders. She testified that she saw two men with guns in the hallway.
Donald Krapf, a sergeant with the Columbia County Sheriff‘s Office, testified that shortly after midnight on January 12, 2012, he responded to a police radio call regarding a home invasion. While en route, he pulled over a vehicle where a defendant was a passenger. When Krapf searched defendant, he found two handguns in his waistband. According to Krapf, the .32 caliber handgun was not loaded, but the .45 caliber handgun was “cocked,” had a round in the chamber and was ready to be fired. Krapf secured the .45 caliber handgun by unloading the weapon, removing the magazine and drawing the slide back. After an in-court demonstration, David Chrapowitzky and Barbara Chrapowitzky both confirmed that, on the night of the homе invasion, they heard the sound of the .45 caliber handgun being loaded. Lewis testified that she was in the vehicle with defendant, two other men and her cousin on the night of the January 11-12, 2012 home invasion, that she
To determine whether a verdict is legally sufficient, we must decide, upon consideration of the facts in the light most favorable to the prosecution, whether “there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt” (People v Denson, 26 NY3d 179, 188 [2015] [internal quotation marks and citations omitted]). Here, Lewis and the Chrapowitzkys confirmed that they heard the sound of the .45 caliber handgun being loaded. Krapf testified that defendant had the loaded .45 caliber handgun tucked into his waistband and, based on Brahm‘s testing, the .45 caliber handgun was operable. In our view, this evidence establishes that defendant possessed a “deadly weapon” during the events at the Chrapowitzkys’ home and, thus, was legally sufficient to support the convictions of first degree burglary and first degrеe robbery (see
We agree with defendant, however, that there was not legally sufficient evidence to establish that defendant possessed a “deadly weapon” during the burglary and robbery at the home occupied by King and Wilson (see
Although defendant did not preserve the legal sufficiency challenges he now raises with regard to his two convictions for criminal possession of a weapon in the second degree, we necessarily review the evidence as to each element of the crimes as part of our weight of the evidence review (see People v Danielson, 9 NY3d at 348-349; People v McFarland, 106 AD3d 1129, 1130 [2013], lv denied 22 NY3d 1140 [2014]). A person is guilty of criminal possession of a weapon in the second degree where he or she intends to use a loaded firearm unlawfully against another person or possesses any loaded firearm outside of his or her home or business (see
Finally, defendant argues, the People concede and we agree that County Court imposed an illegal pеriod of postrelease supervision. Defendant was found guilty of four counts of burglary in the first degree, two counts of criminal possession of a weapon in the second degree, one count of criminal posses-
Peters, P.J., Lahtinen, Rose and Aarons, JJ., concur. Ordered that the judgment is modified, on the law, by reducing defendant‘s convictions of (1) burglary in the first degree under count 6 of the indictment to burglary in the second degree and (2) robbery in the first degree under count 8 of the indictment to robbery in the second degree; vacate the sentences imposed on said convictions, vacate the periods of postrelease supervision and matter remitted to the County Court of Columbia County for resentencing; and, as so modified, affirmed.