People v. Bloome

• Decision Date: 25 May 2022
• Docket Number: 2017-01884,Ind. No. 307/15
• Parties: The People of the State of New York, respondent, v. Steven Bloome, appellant.
• Court: New York Supreme Court — Appellate Division

2022 NY Slip Op 03398

The People of the State of New York, respondent, v. Steven Bloome, appellant.

No. 2017-01884, Ind. No. 307/15

Supreme Court of New York, Second Department

May 25, 2022

Patricia Pazner, New York, NY (Paul Skip Laisure and Mark W Vorkink of counsel), for appellant.

Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., JOSEPH J. MALTESE, LARA J. GENOVESI, WILLIAM G. FORD, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Wayne M. Ozzi, J.), rendered February 8, 2017, convicting him of burglary in the first degree, robbery in the first degree (two counts), criminal mischief in the fourth degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by vacating the convictions of burglary in the first degree under count 1 of the indictment and robbery in the first degree under count 5 of the indictment, vacating the sentences imposed thereon, and dismissing those counts of the indictment; as so modified, the judgment is affirmed.

The defendant's contentions as to the legal sufficiency of the evidence with respect to his conviction of robbery in the first degree under count 5 of the indictment are unpreserved for appellate review (see People v Hawkins, 11 N.Y.3d 484). Nevertheless, we reach this issue in the exercise of our interest of justice jurisdiction (see CPL 470.15[6][a]). This count of the indictment accused the defendant of forcibly stealing a cellular phone. However, the People did not adduce evidence sufficient to establish that the defendant had the necessary larcenous intent to "either exert permanent or virtually permanent control over the [cellular phone], or dispose of it in such a manner as to render it unlikely that the owner would recover it" (People v Terranova, 147 A.D.3d 1086, 1087). Accordingly, we vacate this conviction and the sentence imposed thereon, and dismiss that count of the indictment.

In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 N.Y.3d 342), we accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 N.Y.3d 383, 410; People v Bleakley, 69 N.Y.2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt as to burglary in the first degree under count 1 of the indictment, robbery in the first degree under count 4 of the indictment, and criminal possession of a weapon in the fourth degree under count 9 of the indictment was not against the weight of the evidence (see People v Romero, 7 N.Y.3d 633).

We conclude, however, that count 1 of the indictment, which cited Penal Law § 140.30(1) and purportedly charged the defendant with burglary in the first degree, was jurisdictionally defective. An indictment is jurisdictionally defective if it "does not effectively charge the defendant with the commission of a particular crime-for instance, if it fails to allege that the defendant committed acts constituting every material element of the crime charged" (People v D'Angelo, 98 N.Y.2d 733, 734-735, citing People v Iannone, 45 N.Y.2d 589, 600). "'While it is true that the incorporation... by specific reference to the statute operates without more to constitute allegations of all the elements of the crime[, ]... such reference may be negated... by the inclusion of conduct [or a specific allegation] that does not constitute the crime charged'" (People v Solomon, 203 A.D.3d 1468, 1469, quoting People v Boula, 106 A.D.3d 1371, 1372).

Here, count 1 of the indictment cited Penal Law § 140.30(1) and purportedly charged the defendant with burglary in the first degree. "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 explosives or a deadly weapon" (id.). However, count 1 of the indictment alleged that "in the course of effecting entry into said dwelling," the defendant "was armed with a dangerous weapon, to wit: a knife." Inasmuch as the offense of burglary in the first degree requires that the defendant be armed with a "deadly weapon," a term which is specifically defined in Penal Law § 10.00(12) and which definition includes only certain specified knives, count 1 of the indictment was jurisdictionally defective because it failed to effectively charge the defendant with the commission of a crime (see id. §§ 10.00, 140.30[1]).

Moreover, the People's motion to amend count 1 of the indictment was not authorized by the terms of CPL 200.70 (see People v Boula, 106 A.D.3d at 1373). Although a trial court may permit an indictment to be amended "with respect to defects, errors or variances from the proof relating to [the] matters of form, time, place, names of persons and the like" (CPL 200.70[1]), CPL 200.70(2)(a) prohibits any amendment of an indictment when the amendment is needed to cure "[a] failure thereof to charge or state an offense" (see People v Solomon, 203 A.D.3d at 1470). Here, the People sought to amend count 1 so as to charge the defendant with burglary in the first degree under Penal Law § 140.30(3). Since the proposed amendment would effectively have cured the failure to charge the defendant with burglary in the first degree under Penal Law § 140.30(1), it was therefore prohibited by CPL 200.70(2), regardless of any consistency with the People's theory before the grand jury (see People v Perez, 83 N.Y.2d 269, 276; People v Roberts, 128 A.D.3d 858, 859; People v Boula, 106 A.D.3d at 1373; cf. People v Jabbour, 73 A.D.3d 950, 950-951). Accordingly, we vacate this conviction and the sentence imposed thereon, and dismiss that count of the indictment.

The Supreme Court improvidently exercised its discretion in determining, after a Sandoval hearing (People v Sandoval, 34 N.Y.2d 371), that if the defendant chose to testify at trial, the prosecutor could cross-examine him regarding the facts underlying his January 2004 conviction of assault in the second degree, and his September 2012 conviction of robbery in the third degree. A Sandoval determination "rests largely within the reviewable discretion of the trial court, to be exercised in light of the facts and circumstances of the particular case before it" (People v Hayes, 97 N.Y.2d 203 207; see People v Williams, 12 N.Y.3d 726, 727; People v Sandoval, 34 N.Y.2d at 375; People v Lowe, 189 A.D.3d 1461, 1464). Although "questioning concerning other crimes is not...