People v. TaylorPeople v. Taylor
Decided and Entered: July 19, 2018
Calendar Date: June 7, 2018
Before: Garry, P.J., McCarthy, Lynch, Devine and Mulvey, JJ.
Rural Law Center of New York, Castleton (Keith F. Schockmel of counsel), for appellant.
Patrick A. Perfetti, District Attorney, Cortland (Elizabeth McGrath of counsel), for respondent.
MEMORANDUM AND ORDER
Mulvey, J.
Appeal from a judgment of the County Court of Cortland County (Ames, J.), rendered August 11, 2015, upon a verdict convicting defendant of the crime of burglary in the second degree.
During the early morning hours of September 16, 2014, the victims awoke to discover a man looking around their apartment while using his cell phone as a flashlight. When one of the victims left the bed to pursue defendant, he fled the apartment. The victims reported the incident to police later that same day, identifying defendant as the intruder and claiming that a roll of quarters was missing from their living room. Defendant was subsequently arrested and charged by indictment with burglary in the second degree and petit larceny. Following a jury trial, he was convicted of the burglary charge but acquitted of the larceny charge. County Court sentenced defendant, as a second violent felony offender, to nine years in prison followed by five years of postrelease supervision. He now appeals.
Defendant contends that his conviction was not supported by legally sufficient evidence and was against the weight of the evidence, specifically contesting the element of intent. Defendant‘s challenge to the legal sufficiency of the evidence is
Insofar as is relevant here, a person is guilty of burglary in the second degree if he or she knowingly enters a dwelling with intent to commit a crime therein (
The trial testimony established that defendant entered the darkened home of the victims, without their permission, and used his cell phone as a flashlight as he surreptitiously examined the contents within. When the victims awoke and confronted defendant, he offered no explanation for his presence and instead ran from the home. One of the victims pursued defendant as he ran out of the apartment and down the street, but was unable to catch him. Defendant‘s flight can
We are similarly unpersuaded by defendant‘s contention that County Court erred in denying his request to charge trespass as a lesser included offense of the burglary charge. “A defendant is entitled to a lesser included offense charge upon request when (1) it is impossible to commit the greater crime without concomitantly committing the lesser offense by the same conduct and (2) there is a reasonable view of the evidence to support a finding that the defendant committed the lesser offense but not the greater” (People v Morrison, 127 AD3d at 1344 [internal quotation marks, brackets and citations omitted]; see People v Defilippo, 152 AD3d 860, 861 [2017]). While there is no dispute that the first prong of the test has been met (see People v Rickett, 94 NY2d 929, 930 [2000]; People v Alsaifullah, 96 AD3d 1103, 1104 [2012], lv denied 19 NY3d 994 [2012]), there is no reasonable view of the evidence that defendant did not intend to steal property when he entered the victims’ apartment. Considering the victims’ description of the encounter, as well as the corresponding “absence of any evidence suggesting a noncriminal purpose for entry” (People v Martinez, 9 AD3d 679, 681 [2004], lvs denied 3 NY3d 705, 709 [2004]; accord People v Morrison, 127 AD3d at 1344; People v Alsaifullah, 96 AD3d at 1104), we find no error in County Court‘s refusal to charge the lesser included offense.
Defendant‘s challenge to County Court‘s jury instruction on the burglary charge is unpreserved for our review, as he failed to raise an objection thereto (
Finally, we reject defendant‘s assertion that he was deprived of the effective assistance of counsel. Defendant‘s claim of ineffective assistance is largely premised on counsel‘s failure to utilize the information set forth in the bill of particulars to argue to the jury that there was no evidence that defendant entered the residence in question with the intent to commit the specific crime of petit larceny. Yet, defendant has failed to demonstrate “the absence of strategic or other legitimate explanations” for defense counsel‘s failure to pursue this course of action (People v Benevento, 91 NY2d 708, 712 [1998] [internal quotation marks and citations omitted]; see People v Garcia, 75 NY2d 973, 974 [1990]; People v Rivera, 71 NY2d 705, 709 [1988]). Throughout the trial, defense counsel vigorously pursued a misidentification defense, attempting to undermine the victims’ credibility due to their delayed report of the incident to police and to cast doubt on the reliability of the identification based upon the victims’ limited opportunity to observe him, as well as the inadequacy of the lighting conditions. Counsel could have reasonably determined that focusing on defendant‘s criminal intent, or lack thereof, when he entered the home “would have undermined the claim that he was simply not there at all” (People v Howard, 22 NY3d 388, 401 [2013]; see People v DeGina, 72 NY2d 768, 777 [1988]; People v Diaz, 149 AD3d 974, 975 [2017]; People v Clark, 129 AD3d 1, 11 [2015], affd 28 NY3d 556 [2016]; People v Duffy, 119 AD3d 1231, 1234 [2014], lv denied 24 NY3d 1043 [2014]; People v Gordon, 92 AD3d 580, 581 [2012], lv denied 19 NY3d 864 [2012]; People v Thaddies, 50 AD3d 1249, 1250 [2008], lv denied 10 NY3d 965 [2008]). Under these circumstances, we will not second-guess defense counsel‘s plausible decision to avoid this “hazardous tactic” (People v DeGina, 72 NY2d at 777) and to instead focus exclusively on the issue of misidentification (see People v Howard, 22 NY3d at 401; People v Diaz, 149 AD3d at 975; People v Duffy, 119 AD3d at 1234; People v Gordon, 92 AD3d at 581; People v Stokes, 25 AD3d 332, 333 [2006], lv denied 6 NY3d 839 [2006]).
Garry, P.J., McCarthy, Lynch and Devine, JJ., concur.
ORDERED that the judgment is affirmed.