People v. SpencerPeople v. Spencer
Defendant, along with his codefendants Christopher Anderson and Jeremy Bost,1 was charged in a nine-count indictment for a series of events stemming from three home invasions occurring in January 2012. After a jury trial, defendant was convicted of two counts of burglary in the first degree (counts 1 and 2) and two counts of criminal possession of a weapon in the second degree (counts 3 and 4)—all of which related to the same home invasion on January 12, 2012—and acquitted of the remaining charges related to the other home invasions. Defendant was thereafter sentenced to 15 years in prison for each conviction of burglary in the first degree, to run concurrently, and 10 years in prison for each conviction of criminal possession of a weapon in the second degree, to run concurrently with each other but consecutively to the burglary convictions. Defendant now appeals.
Defendant first contends that the evidence was legally insufficient to support his convictions and that the verdict was against the weight of the evidence. Although defendant‘s challenge to the legal sufficiency of the evidence is unpreserved given that he did not renew his motion to dismiss at the close of all the proof (see People v Pigford, 148 AD3d 1299, 1300 [2017]), “our weight of the evidence review includes an evaluation as to whether the elements of the crimes for which [defendant] was convicted were prove[n] beyond a reasonable doubt” (People v Mesko, 150 AD3d 1412, 1412 [2017]; see People v Morgan, 149 AD3d 1148, 1149 [2017]). Insofar as a different
As for counts 1 and 2 of the indictment, a person is guilty of burglary in the first degree when he or she “knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein, and when, in effecting entry or while in the dwelling or in immediate flight therefrom, he [or she] or another participant in the crime . . . [i]s armed with . . . a deadly weapon; or . . . [d]isplays what appears to be a pistol . . . or other firearm” (
During the trial, the victims of the January 12, 2012 burglary—a husband and wife—testified that they were asleep in bed when the husband heard someone walking inside the house. He got up to investigate and, after turning a light on, saw two people holding handguns. The husband testified that one intruder was wearing a mask and holding an automatic handgun and the other intruder was wearing a bandana over his face and holding a pistol. The wife testified that both men were wearing dark hooded sweatshirts. The husband further testified that, at that point, he heard “a pistol being engaged” and “saw the guns coming up” as the intruders began to run
Shortly thereafter, local police officers received a 911 dispatch call alerting them to the home invasion. They were told that the suspects were wearing dark hooded sweatshirts and that a handgun was displayed. En route to the crime scene, one of the officers spotted a car whose driver was wearing a dark hooded sweatshirt and stopped the vehicle after it turned without signaling. Although the vehicle belonged to defendant, Anderson was driving. Bost was sitting in the backseat, defendant was seated in the back middle seat and there were two female passengers, one seated in the front passenger seat and one seated in the back. One of the officers testified that there was a black mask on the floor between Bost and defendant, both of whom were also wearing dark hooded sweatshirts. After state troopers arrived at the scene, they conducted a search of Bost and discovered two handguns in his waistband, one of which was loaded. Later, a search of the vehicle revealed an unfired .45 caliber bullet located on the passenger floor. A firearms expert testified that both of the recovered weapons were operable.
Shavanyce Lewis, who was sitting in the backseat, testified that she was with Catrina Lewis—who was sitting in the front passenger seat—Bost, Anderson and defendant on January 12, 2012. She explained that they intended to go to a party in defendant‘s vehicle. However, Shavanyce Lewis testified that, before going to the party, Bost directed Anderson to the victims’ residence and Anderson pulled defendant‘s car into the driveway. Although there was no conversation about what they were doing there, Shavanyce Lewis testified that defendant said, “[W]e shouldn‘t bring those in the house,” referring to the two handguns, but that Anderson and Bost disagreed with defendant. Catrina Lewis testified that she heard a gun slide engage while they were in the car. Both women said that all three men exited the vehicle at the same time, returned to the vehicle at roughly the same time after approximately five minutes and that Anderson drove them away. Shavanyce Lewis said that, after they left the victims’ home, Anderson handed his weapon to Bost and told them that he had tried to fire his handgun at one of the victims, but his gun jammed. Bost placed Anderson‘s weapon behind him. Shavanyce Lewis further testified that defendant did not speak after he got back into the car, but that he looked “nervous [and] scared.”
However, as for defendant‘s convictions of criminal possession of a weapon in the second degree, the conclusion that defendant was an accessory to Anderson or Bost in their unlawful possession of weapons is against the weight of the evidence (see
Additionally, and contrary to defendant‘s contention, defendant was not deprived of the effective assistance of counsel. To establish the denial of the effective assistance of counsel, a “defendant must demonstrate that his [or her] attorney failed to provide meaningful representation,” which includes demonstrating “the absence of strategic or other legitimate explanations for counsel‘s allegedly deficient conduct” (People v Caban, 5 NY3d 143, 152 [2005] [internal quotation marks and citations omitted]; see People v Bullock, 145 AD3d 1104, 1106 [2016]). Further, the standard is one of “reasonable competence, not perfect representation” (People v Bullock, 145 AD3d at 1107; see People v Turner, 5 NY3d 476, 480 [2005]). Defendant has not shown a lack of legitimate explanation for counsel‘s failure to challenge three jurors who acknowledged that they knew a police investigator who was a late-added witness. Each of the jurors who acknowledged knowing the investigator averred that they could remain impartial, and defendant has not shown that there was no legitimate explanation for counsel‘s preference to accept County Court‘s inquiry as to their impartiality, or, more generally, counsel‘s preference to continue the trial with those three jurors.
Moreover, we perceive no deficiency in defense counsel‘s decision not to request that County Court poll the jury after the
Finally, with regard to the concurrent sentences imposed on defendant‘s convictions of burglary in the first degree, which were less than the maximum authorized sentences (see
Garry, Egan Jr., Devine and Clark, JJ., concur. Ordered that the judgment is modified, on the facts, by reversing defendant‘s convictions of criminal possession of a weapon in the second degree under counts 3 and 4 of the indictment; said counts dismissed and the sentences imposed thereon vacated; and, as so modified, affirmed.