People v. Caston

• Decision Date: 12 March 2009
• Docket Number: 101249.
• Citation: 60 A.D.3d 1147,2009 NY Slip Op 01730,874 N.Y.S.2d 623
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ARTHUR CASTON, Appellant.
• Court: New York Supreme Court — Appellate Division

60 A.D.3d 1147

874 N.Y.S.2d 623

2009 NY Slip Op 01730

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v.ARTHUR CASTON, Appellant.

101249.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided March 12, 2009.

Appeal from a judgment of the County Court of Sullivan County(LaBuda, J.), rendered July 24, 2007, upon a verdict convicting defendant of the crimes of burglary in the second degree and criminal possession of stolen property in the fifth degree.

STEIN, J.

Lazaro Alonso arrived home one evening with his family and discovered defendant dressed in black clothing and wearing black gloves, crouched in a fetal position behind a tree, and within an arm's reach of a safe that was later determined to have been stolen from a nearby apartment.When Alonso questioned defendant about his presence on the property, defendant responded that he was "just listening to music."Alonso's wife called 911 and Alonso detained defendant until the police arrived.In response to Alonso's further questions concerning the safe, defendant denied that he had anything to do with it, but indicated that several other individuals were in an apartment building on the property.At no point did Alonso observe or hear other individuals exiting the victim's apartment, nor were there other individuals found inside of the residence by the responding officers.A later investigation revealed that an apartment on the property had been broken into by kicking in the front door.Inside the apartment, the door to the bedroom in which the occupant kept a safe—the same safe found next to defendant —had been forced open.On the porch of another house on the premises, the police also found a pocketbook containing defendant's cellular telephone.

Defendant was charged in a two-count indictment with the crimes of burglary in the second degree and criminal possession of stolen property in the fourth degree.At the conclusion of a Sandoval hearing, County Court ruled that the People could inquire into 18 of defendant's 54 prior convictions should defendant choose to testify.Following a two-day jury trial, defendant was convicted of burglary in the second degree and a lesser included charge of criminal possession of stolen property in the fifth degree.County Court then sentenced defendant as a second felony offender to a prison sentence of seven years on the burglary conviction, and a concurrent jail sentence of one year on the conviction of possession of stolen property.Defendant now appeals and we affirm.

Initially, we discern no error in County Court's Sandoval ruling."The determination as to which prior convictions . . . can be inquired about and the extent of such inquiry rests primarily within the discretion of the trial court"(People v Adams,39 AD3d 1081, 1082[2007], lv denied9 NY3d 872[2007][citations omitted];seePeople v Valderama,25 AD3d 819, 820[2006], lv denied6 NY3d 854[2006]).Here, defendant's 25-year criminal history included over 50 convictions, the majority of which were for theft-related offenses.However, the People requested permission to cross-examine defendant about only 18 convictions, all occurring within the previous 10 years.After carefully considering each conviction, County Court determined that the probative value of those 18 convictions—out of a total of 54—that related to defendant's veracity and credibility was not outweighed by the risk of unfair prejudice (seePeople v Hayes,97 NY2d 203, 208[2002];People v Clarke,5 AD3d 807, 809[2004], lv denied2 NY3d 797[2004]).Thus, we find no abuse of discretion in the Sandoval compromise fashioned by County Court.

Defendant's arguments concerning the legal sufficiency and weight of the evidence essentially center on perceived deficiencies in the police investigation and the circumstantial nature of the People's proof.Because his counsel made only a general motion to dismiss at the close of the People's case, defendant failed to preserve his claim regarding the legal sufficiency of the evidence (seePeople v Gray,86 NY2d 10, 20[1995]).However, we necessarily review the evidence adduced as to each of the elements of the crimes in the context of our review of defendant's challenge regarding the weight of the evidence (seePeople v Danielson,9 NY3d 342, 349-350[2007];People v Loomis,56 AD3d 1046, 1046-1047[2008]).In doing so, we find no merit to either argument.

Where, "based on all the credible evidence a different finding would not have been unreasonable"(People v Bleakley,69 NY2d 490, 495[1987]), "the court must [then] weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions.Based on the weight of the credible evidence, the court then decides whether the jury was justified in finding the defendant guilty beyond a reasonable doubt"(People v Danielson,9 NY3d at 348[citation omitted];seePeople v Romero,7 NY3d 633, 636[2006];People v Bleakley,69 NY2d at 495;People v Khuong Dinh Pham,31 AD3d 962, 964[2006]).

In order to convict defendant of the crime of burglary in the second degree, the People were required to prove that defendant"knowingly enter[ed] or remain[ed] unlawfully in a building with intent to commit a crime therein, and . . . [t]he building [was] a dwelling"(Penal Law § 140.25 [2]).A person enters or remains unlawfully in a dwelling "when he[or she] is not licensed or privileged to do so"(Penal Law § 140.00 [5]), such as when consent has not been obtained or is subsequently revoked from the owner or another who has the authority to issue such consent (seePeople v Graves,76 NY2d 16, 20[1990];People v Glanda,5 AD3d 945, 950[2004], lv denied3 NY3d 640[2004]).Intent to commit a crime "may be inferred from, inter alia, the circumstances of the unlawful entry, defendant's unexplained presence on the premises and `defendant's actions and assertions when confronted by the police or the owner'"(People v Moore,285 AD2d 827, 828[2001], lv denied97 NY2d 685[2001], quotingPeople v Mitchell,254 AD2d 830, 831[1998], lv denied92 NY2d 984[1998];seePeople v Hunter,32 AD3d 611, 612[2006];People v Marmulstein,6 AD3d 879, 881[2004], lv denied3 NY3d 660[2004]).In order to convict defendant of criminal possession of stolen property in the fifth degree, the People were required to prove that defendant"knowingly possesse[d] stolen property, with intent to benefit himself or a person other than an owner thereof"(Penal Law § 165.40).

Here, the Alonsos testified that they discovered defendant at approximately 8:25 P.M. dressed in black clothing and hiding just outside the apartment within arm's reach of a safe that had not been there at 8:00 P.M.When questioned, defendant explained his presence on the property by saying that he was listening to music.However, defendant had no device for doing so.Similarly, although defendant indicated that other individuals were in the apartment, none was observed.Police...