People v. ColePeople v. Cole
Decided and Entered: June 14, 2018
Calendar Date: April 23, 2018
Before: McCarthy, J.P., Egan Jr., Aarons, Rumsey and Pritzker, JJ.
Matthew C. Hug, Albany, for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.
MEMORANDUM AND ORDER
Rumsey, J.
Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered April 15, 2015, upon a verdict convicting defendant of the crime of burglary in the second degree (four counts).
Defendant was charged by indictment with four counts of burglary in the second degree in connection with four home invasions that occurred in the City of Albany between March 4, 2014 and April 2, 2014. Following a Mapp hearing, County Court suppressed evidence of a hammer that was seized from defendant‘s residence, concluding that the hammer was outside the scope of the warrant that authorized the search and, further, that seizure of the hammer was not justified by the plain view doctrine.
Approximately one month later, the People moved to reargue, contending that the court erred with respect to its application of the plain view doctrine. County Court granted the motion and, upon reargument, reversed its initial suppression decision, finding that the hammer was admissible. Following a jury trial, defendant was convicted as charged and was sentenced, as a persistent violent felony offender, to concurrent prison terms of 20 years to life for each conviction. Defendant appeals.
Defendant argues that the People‘s motion to reargue should have been denied because it was untimely and, further, on the basis that the plain view doctrine was not raised at the Mapp hearing. Initially, defendant failed to establish that the motion was untimely because the record does not contain evidence that the initial order suppressing the evidence was served with
On reargument, County Court properly concluded that the hammer was admissible under the plain view doctrine. “[L]aw enforcement officers may properly seize an item in ‘plain view’ without a warrant if (i) they are lawfully in a position to observe the item; (ii) they have lawful access to the item itself when they seize it; and (iii) the incriminating character of the item is immediately apparent” (People v Brown, 96 NY2d 80, 89 [2001]). All three elements were satisfied here. The hammer was found upon a search of defendant‘s home that was conducted pursuant to a valid warrant that authorized search of the entire premises for items stolen in the various burglaries. As noted by County Court, the nature of the items listed in the warrant — which included small items such as jewelry — justified a search of the contents of the premises, including containers. Thus, the police officers who conducted the search were lawfully in position to observe the hammer and had lawful access to it when they seized it. Further, the incriminating character of the hammer was immediately apparent based on the fact that forcible entry was made to each of the four homes that were burglarized.
Defendant also contends that County Court improperly denied his motion to preclude identification evidence given by Dora Febus because he was never provided with notice pursuant to
During her direct examination, Febus testified that approximately one week prior to the burglary, she answered a ringing doorbell to find a stranger who asked for a person who was unknown to her. The individual left before she could respond to his inquiry. She described the individual as an older black man with long hair who was carrying a satchel. Approximately 10 days after the burglary, Febus went to the police station and identified various objects that had been taken from her residence. While she was at the police station, she asked a police officer about the identity of the individual who had broken into her residence, and the officer provided defendant‘s name. She then asked the officer if she could see a picture of the individual, and the officer responded that it “was online on the Albany Police Department‘s [Facebook page].” Febus testified that she returned home and accessed the Facebook page. Over defendant‘s objection, County Court permitted Febus to continue her testimony regarding her prior identification of defendant. In that regard, she testified that when she accessed the police department‘s Facebook page, she saw a number of mugshots and immediately identified defendant as the person who had knocked on her door approximately one week prior to the burglary.
We are not presented with the issue of whether maintenance by a police department of a Facebook page or website with mugshot photos of arrested individuals — or referral of individuals
Defendant next contends that County Court erred when it gave the jury a recent, exclusive possession charge with respect to counts 1, 2 and 3 of the indictment because he was not found in possession of the stolen items until several weeks after these three burglaries occurred3. “Recent, unexplained, exclusive possession of the fruits of a burglary may raise an inference of guilt sufficient to support a conviction of burglary” (People v Measheaw, 108 AD2d 952, 953 [1985] [citations omitted]; see People v Baskerville, 60 NY2d 374, 382 [1983]). The recent, exclusive possession charge, however, “must be tailored to the facts of the particular case” (People v Baskerville, 60 NY2d at 382), because “[t]here are no precise definitions of what constitutes recent and exclusive possession” (People v Schillaci, 68 AD2d 124, 126 [1979]). In that regard, although there is no bright-line rule as to when the recent, exclusive possession charge is improper, a one-week period is not so long a period as to be improper as a matter of law (see People v Combo, 275 AD2d 936, 937 [2000]), and “the longer the period between the larceny and the discovery of [the] defendant‘s possession of
Here, there was sufficient circumstantial evidence to permit the recent, exclusive possession charge to be given on all four counts of the indictment. Notably, items stolen from each of the four locations and the hammer, which could have been used to facilitate the forced entries, were found together upon a search of defendant‘s residence, and defendant sold items stolen during three of the burglaries to pawnshops. The burglaries all occurred in close proximity to each other — and to defendant‘s residence — within less than one month. Further, the burglaries were all conducted in a similar fashion; in each case, access was gained by forcing open a door and the interior of the residence was ransacked in a search for items that could be easily transported and sold.
Defendant contends that the verdict was not supported by legally sufficient evidence and was against the weight of the evidence. “When considering a challenge to the legal sufficiency of the evidence, we view the evidence in the light most favorable to the People and evaluate whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged” (People v Robinson, 156 AD3d 1123, 1124 [2017] [internal quotation marks and citations omitted], lv denied 30 NY3d 1119 [2018]). “A weight of the evidence review requires this Court to first determine whether, based on all the credible evidence, a different finding would not have been unreasonable and then weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence” (People v Perry, 154 AD3d 1168, 1169 [2017] [internal quotation marks, ellipsis, brackets and citations omitted]).
As relevant here, a person commits burglary in the second degree when “he [or she] knowingly enters or remains unlawfully in a building with intent to commit a crime therein, and when . . . the building is a dwelling” (
Turning to consideration of the weight of the evidence, a different verdict would not have been unreasonable in light of defendant‘s testimony that he did not commit the burglaries, but came into possession of the victims’ property, which he claimed he did not know was stolen, when he received it as payment upon the sale of illicit drugs. However, when we view the evidence in a neutral light and give deference to the jury‘s credibility determinations, we find that the convictions were not against the weight of the evidence in light of defendant‘s possession of property stolen during the burglaries and his sale of some of those items to pawnshops.
Finally, we are unpersuaded by defendant‘s argument that his sentence was harsh and excessive. We find no abuse of discretion by County Court or extraordinary circumstances that would warrant a reduction of his sentence, which falls within the permissible statutory range (see People v Lord, 159 AD3d 1283, 1284 [2018]).
McCarthy, J.P., Egan Jr., Aarons and Pritzker, JJ., concur.
ORDERED that the judgment is affirmed.