People v. Brown

• Decision Date: 10 June 2021
• Docket Number: 110743
• Citation: 150 N.Y.S.3d 774,195 A.D.3d 1163
• Parties: The PEOPLE of the State of New York, Respondent, v. David BROWN, Appellant.
• Court: New York Supreme Court — Appellate Division

195 A.D.3d 1163
150 N.Y.S.3d 774

The PEOPLE of the State of New York, Respondent,
v.
David BROWN, Appellant.

110743

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: April 20, 2021
Decided and Entered: June 10, 2021

150 N.Y.S.3d 775

Mark Diamond, Albany, for appellant.

P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Aarons, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

195 A.D.3d 1163

Appeal from a judgment of the Supreme Court (Lynch, J.), rendered September 20, 2018 in Albany County, upon a verdict convicting defendant of the crime of burglary in the second degree.

Following a jury trial, defendant was convicted of burglary in the second degree stemming from the theft of a television

195 A.D.3d 1164

from an apartment located at 216 Ontario Street in the City of Albany. Supreme Court thereafter sentenced defendant to a prison term of 3½ years, with five years of postrelease supervision. Defendant appeals.

Defendant challenges the verdict as legally insufficient and against the weight of the evidence claiming that the People failed to prove beyond a reasonable doubt that he in fact entered the apartment and that he had the requisite intent to steal the television, as he was operating under the belief that his companion lived in the apartment and owned the television. "When considering a challenge to the legal sufficiency of the evidence, [this Court must] 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. Hernandez, 180 A.D.3d 1234, 1235, 116 N.Y.S.3d 799 [2020] [internal quotation marks and citations omitted], lv denied 35 N.Y.3d 993, 125 N.Y.S.3d 630, 149 N.E.3d 391 [2020] ; see People v. Nunes, 168 A.D.3d 1187, 1187–1188, 90 N.Y.S.3d 694 [2019], lv denied 33 N.Y.3d 979, 101 N.Y.S.3d 234, 124 N.E.3d 723 [2019] ). "In reviewing whether a conviction is supported by the weight of the evidence, we decide whether, based on all the credible evidence, a different finding would not have been unreasonable, and then, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" ( People v. Maeweather, 172 A.D.3d 1646, 1647, 100 N.Y.S.3d 754 [2019] [internal quotation marks and citations omitted], lv denied 34 N.Y.3d 1017, 114 N.Y.S.3d 765, 138 N.E.3d 494 [2019] ; see People v. Saylor, 173 A.D.3d 1489, 1490, 102 N.Y.S.3d 796 [2019] ).

As relevant here, a person is guilty of burglary in the second degree when he or she knowingly enters a dwelling with the intent to commit a crime therein (see Penal Law § 140.25[2] ; see

150 N.Y.S.3d 776

People v. Strauss, 155 A.D.3d 1317, 1318, 64 N.Y.S.3d 771 [2017], lv denied 31 N.Y.3d 1122, 81 N.Y.S.3d 382, 106 N.E.3d 765 [2018] ). Further, "[a]s relevant to accessorial liability, when one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he or she ... intentionally aids such person to engage in such conduct" ( People v. Chapman, 182 A.D.3d 862, 864, 123 N.Y.S.3d 236 [2020] [internal quotation marks and citations omitted]; see People v. Strauss, 155 A.D.3d at 1318, 64 N.Y.S.3d 771 ).

The trial testimony provided by the three occupants of the apartment from which the television was stolen established that their apartment was located on the second floor of the

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house at 216 Ontario Street. Two of the residents reported hearing footsteps pass by their bedrooms on the morning of the burglary, at approximately the same time. Video evidence admitted at trial placed defendant and his companion walking towards the apartment at approximately 5:34 a.m. on the morning of the burglary. Footage from the City's surveillance cameras then captured the two men walking away from the general direction of the apartment approximately 10 minutes later, with defendant carrying a television. As a car approached from behind the two men, defendant placed the television against a building amid bushes as the other man continued on, walking out of the camera's view. Defendant then turned to face the street as he watched the car drive by. Defendant briefly walked out of the camera's view, before returning seconds later with the other man. Defendant retrieved the television and the two proceeded on in the same direction.

The People also admitted into evidence excerpts of recorded telephone calls between defendant and his girlfriend that he had placed from jail. In these calls, defendant identified his companion as a man named "King" and, in the first recorded call, defendant described that King had asked defendant to go with him to pick something up, and that defendant thought the apartment was "maybe [King's] house." However, defendant then stated that he knew whose house it was, and that he "should have known it wasn't [King's]." In a later call, defendant admitted that he "obviously did know better but just did the wrong thing anyway." Defendant also acknowledged that he knew who the television was ultimately sold to and that he had received a small payment from King for his assistance. Although defendant explained that he could not remember much of that day, he acknowledged that "it was King's mark." Noting that King had passed away a week after the burglary, defendant stated, "[T]his is a saving grace. Also a bit of a problem, but in the long run, I don't have somebody who's going to tell on me and then, of course, he committed burglary and it all falls on him." In another call, defendant framed his conduct as an "effect of [his] addiction" and described this as "another option" for his defense "if it doesn't go the way we want it to go."

Defendant testified on his own behalf and explained that, on the morning of the burglary, he ended his shift as a line cook at 2:30 a.m., went home, took unprescribed Xanax and then went to a local corner store, where he ran into King, whom he had known for a few years. Defendant stated that, at the time, he had a problem with substance abuse and was drinking heavily. Defendant testified that King asked him to help move a

195 A.D.3d 1166

television and that King "didn't specify where to or where from." Defendant agreed, in the hopes of getting drugs in return for his assistance. As the two set out, defendant claimed that he was "under the assumption" that they would be picking up the

150 N.Y.S.3d 777

television from King's house, although he did not know where King lived at the time. When they arrived at 216 Ontario Street, defendant...