People v. Cason

• Decision Date: 10 March 2022
• Docket Number: 110596
• Citation: 203 A.D.3d 1309,164 N.Y.S.3d 305
• Parties: The PEOPLE of the State of New York, Respondent, v. Donnie L. CASON II, Appellant.
• Court: New York Supreme Court — Appellate Division

203 A.D.3d 1309
164 N.Y.S.3d 305

The PEOPLE of the State of New York, Respondent,
v.
Donnie L. CASON II, Appellant.

110596

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

Calendar Date: January 7, 2022
Decided and Entered: March 10, 2022

164 N.Y.S.3d 308

Rural Law Center of New York, Castleton (Keith F. Schockmel of counsel), for appellant.

Patrick A. Perfetti, District Attorney, Cortland, for respondent.

Before: Garry, P.J., Egan Jr., Aarons and Colangelo, JJ.

MEMORANDUM AND ORDER

Colangelo, J.

Appeal from a judgment of the Supreme Court (Campbell, J.), rendered June 4, 2018 in Cortland County, upon a verdict convicting defendant of the crimes of burglary in the second degree, criminal mischief in the fourth degree, harassment in the second degree, criminal contempt in the second degree (22 counts) and tampering with a witness in the fourth degree.

In June 2017, defendant was charged by indictment with burglary in the second degree, two counts of criminal contempt in the first degree, criminal trespass in the second degree, criminal mischief in the fourth degree and harassment in the second degree based on allegations that, on January 20, 2017, he forcibly entered the residence of the mother of his children (hereinafter the victim) and harassed the victim in violation of an extant order of protection issued in her favor. In October 2017, defendant was charged in a separate indictment with 22 counts of criminal contempt in the first degree and tampering with a witness in the fourth degree, based on defendant's alleged intentional violations of an order of protection issued on January 21, 2017 and his attempts to dissuade the victim from testifying before a grand jury regarding the facts and circumstances of the January 20, 2017 incident. The People moved successfully to consolidate the two indictments, and a jury trial ensued in the Integrated Domestic Violence part of Supreme Court. Following a jury trial, defendant was convicted of burglary in the second degree, criminal mischief in the fourth degree, harassment in the second degree, 22 counts of criminal contempt in the second degree and tampering with a witness in the fourth degree. He was thereafter sentenced, as a second felony offender, to eight years in prison, to be followed by five years of postrelease supervision, on the burglary conviction and to various lesser concurrent prison terms on the remaining convictions. Supreme Court also issued a full stay-away order of protection in favor of, among others, the victim and their two children. Defendant appeals.

Defendant contends that his conviction for burglary in the second degree is not supported by legally sufficient evidence and is against the weight of the evidence as there was insufficient proof establishing that he possessed the requisite intent to commit a crime upon his entry into the victim's residence. Although defense counsel moved for a trial order of dismissal at the close of the People's proof, as counsel failed to renew said motion "after the presentation of [the] defense case, defendant failed to preserve his legal sufficiency challenge" ( People v. Walker, 190 A.D.3d 1102, 1103, 140 N.Y.S.3d 307 [2021], lvs denied 37 N.Y.3d 958, 961, 147 N.Y.S.3d 517, 170 N.E.3d 391 [2021]; see People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61 [2006] ). "Nevertheless, as part of our weight of the evidence review, we necessarily

164 N.Y.S.3d 309

determine whether the People proved each element of the charged crimes beyond a reasonable doubt" ( People v. Walker, 190 A.D.3d at 1103, 140 N.Y.S.3d 307 [citations omitted]; see People v. Serrano, 200 A.D.3d 1340, 1341–1342, 158 N.Y.S.3d 389 [2021] ; People v. Barzee, 190 A.D.3d 1016, 1017, 138 N.Y.S.3d 718 [2021], lv denied 36 N.Y.3d 1094, 144 N.Y.S.3d 110, 167 N.E.3d 1245 [2021] ). "In a weight of the evidence analysis, we view the evidence in a neutral light and determine whether a different verdict would have been unreasonable; if a different verdict would not have been unreasonable, we 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. Ferguson, 193 A.D.3d 1253, 1254, 147 N.Y.S.3d 204 [2021] [citations omitted], lv denied 37 N.Y.3d 964, 148 N.Y.S.3d 763, 171 N.E.3d 239 [2021] ; see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). In conducting this analysis, "[g]reat deference is accorded to the fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor" ( People v. Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ; see People v. Cubero, 160 A.D.3d 1298, 1300, 75 N.Y.S.3d 658 [2018], affd 34 N.Y.3d 976, 113 N.Y.S.3d 1, 136 N.E.3d 747 [2019] ).

For defendant to be found guilty of burglary in the second degree as charged in the indictment, the People were required to prove that defendant "knowingly enter[ed] or remain[ed]" in the victim's home unlawfully with the "intent to commit a crime therein" ( Penal Law § 140.25[2] ). "A person ‘enters or remains unlawfully’ in or upon premises when he [or she] is not licensed or privileged to do so" ( Penal Law § 140.00[5] ). Since the People did not expressly limit their theory of liability to the intent to commit a specific crime, there was "no requirement that the People allege or establish the particular crime that defendant intended to commit upon entering the dwelling" ( People v. Taylor, 163 A.D.3d 1275, 1276, 81 N.Y.S.3d 657 [2018], lv denied 32 N.Y.3d 1068, 89 N.Y.S.3d 123, 113 N.E.3d 957 [2018] ). "[A] defendant's intent to commit a crime may be properly inferred from, among other things, the circumstances of the entry, his or her unexplained presence in the [dwelling] and his or her actions and statements while on the premises" ( People v. Saylor, 173 A.D.3d 1489, 1491, 102 N.Y.S.3d 796 [2019] [internal quotation marks, brackets and citations omitted]; see People v. Lewis, 5 N.Y.3d 546, 552, 807 N.Y.S.2d 1, 840 N.E.2d 1014 [2005] ; People v. Hajratalli, 200 A.D.3d 1332, 1336, 158 N.Y.S.3d 405 [2021] ). Notably, " ‘the intent necessary for burglary can be inferred from the circumstances of the entry itself’ " ( People v. Kelly, ––– A.D.3d ––––, ––––, 160 N.Y.S.3d 486, 2022 N.Y. Slip Op. 00695, *1 [2022], quoting People v. Mackey, 49 N.Y.2d 274, 280, 425 N.Y.S.2d 288, 401 N.E.2d 398 [1980] ).

The evidence at trial established that defendant and the victim were the parents of two daughters. Earlier in the day, on January 20, 2017, the victim came home from the hospital after giving birth two days earlier to their second daughter by cesarean section. Her activities were restricted, and defendant was at the residence to help her and take care of their older child. The victim's mother took defendant and the victim to see their newborn at the hospital and, upon their return, defendant, the victim's brother and the boyfriend of the victim's mother picked up dinner for the family at Kentucky Fried

164 N.Y.S.3d 310

Chicken. Upon their return, defendant argued with the victim about having paid for the dinner with a small amount of money in his bank account and not having been reimbursed as promised. After dinner, defendant bathed the older child and helped put her to sleep. He and the victim argued again. Defendant went into the kitchen and packed up the remaining food to take to his apartment. Defendant and the victim's mother argued about the food, and, at her request, defendant left the residence. After leaving, defendant repeatedly telephoned the victim, but she did not take his calls. She text-messaged defendant that she was in pain and was worried about their newborn, and she asked him to stop calling. While at his apartment, defendant took Adderall and gulped down four to five ounces of brandy; he then walked back to the victim's residence. The front door had been locked, preventing his reentry, and defendant rattled the door handle, stating, "[L]et me in this house. I am going to enter this house." He ignored orders that he leave and, instead, rang the doorbell and pounded on the door several times. He then proceeded to a living room window and pounded on it until the glass shattered and he gained entry. After he entered the house, defendant went into the kitchen and shoved the victim's mother, who had been standing protectively in front of the victim, to the floor. He then grabbed the victim and "attacked [her] to the ground." After she got up and walked by the refrigerator, "he started coming after [her] again ... and then he was screaming at her ... and he kept...