People v. Clarke

• Decision Date: 02 July 1992
• Citation: 185 A.D.2d 124,585 N.Y.S.2d 738
• Parties: The PEOPLE of the State of New York, Respondent, v. Archie CLARKE, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 738

585 N.Y.S.2d 738

185 A.D.2d 124

The PEOPLE of the State of New York, Respondent, v. Archie CLARKE, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

July 2, 1992.

Before ELLERIN, J.P., and ASCH, KASSAL and SMITH, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Budd Goodman, J.), rendered October 20, 1989, convicting defendant, after a jury trial, of two counts of burglary in the first degree (P.L. § 140.30[2], [3], and sentencing him to concurrent, indeterminate terms of imprisonment of from three to nine years, is affirmed.

During the early morning hours of November 10, 1988, defendant had a violent altercation with Ronald Clarke, his brother, during which he crashed through the latter's locked apartment door and entered through the opening wielding a seven-foot metal bed slat. When Clarke grabbed a broomstick to protect himself, defendant swung the bed slat, breaking the stick in half, and then chased his brother into the kitchen of the apartment. There, as Clarke crouched with his hand over his head and pleaded that he gave up, defendant struck him on the top of the head and left hand with the bed slat.

These events took place in a family-owned building located at 136 West 118 th Street, where defendant had an apartment on the third floor, Clarke lived in an apartment on the second floor, and their aunt, who called the police when Clarke fled to her apartment and collapsed on the floor bleeding profusely from his head, lived on the first floor. Two unrelated families also lived in the building.

Indicted for the crimes of burglary in the first degree (two counts), assault in the second degree, and criminal possession of a weapon in the third degree, defendant was found guilty of the burglary charges, but the jury deadlocked on the assault and weapon possession counts, which were later dismissed. On appeal, defendant argues 1) that the evidence was insufficient to establish that he entered his brother's apartment without license or privilege and 2) that he was denied a fair trial by the court's admission of hearsay testimony into evidence.

Our examination of this record persuades us that the counts of burglary in the first degree were proved beyond a reasonable doubt. Initially, we note that the standard for review in a challenge to the legal sufficiency of evidence is whether, when viewed in the light most favorable to the People, "there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury * * * and as a matter of law satisfy the proof and burden requirements for every element of the crime charged" (People v. Thompson, 72 N.Y.2d 410, 413, 534 N.Y.S.2d 132, 530 N.E.2d 839 [quoting People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672]. Of course, issues of credibility are for the triers of fact, whose determination is given great weight on appeal (People v. Loughlin, 66 N.Y.2d 633, 634, 495 N.Y.S.2d 357, 485 N.E.2d 1022; People v. Malizia, 62 N.Y.2d 755, 757, 476 N.Y.S.2d 825, 465 N.E.2d 364, cert. denied, 469 U.S. 932, 105 S.Ct. 327, 83 L.Ed.2d 264).

In challenging the sufficiency of his conviction for burglary in the first degree, defendant urges that, because the building was owned by "the family", he had a right to enter Clarke's apartment. However, the record reveals that the building was divided into distinct living units, that Clarke's apartment was one such separate dwelling, and that Clarke, but not defendant, had a key for it. In the circumstances presented, Clarke was entitled to exclude defendant from his individual dwelling unit (People v. Smith, 144 A.D.2d 600, 601, 534 N.Y.S.2d 1021; People v. Dela Cruz, 162 A.D.2d 312, 556 N.Y.S.2d 892, lv. denied, 76 N.Y.2d 892, 561 N.Y.S.2d 554, 562 N.E.2d 879), and it was far from reasonable for defendant to have believed that he was licensed or privileged to enter Clarke's apartment at the time, and in manner, that he did (see, People v. Bull, 136 A.D.2d 929, 524 N.Y.S.2d 909, lv. denied, 71 N.Y.2d 966, 529 N.Y.S.2d 78, 524 N.E.2d 432). Indeed, the testimony established that 15 to 20 minutes before defendant smashed in the door, Clarke had chased him from the apartment with a kitchen knife and locked it behind him.

This record amply supports a finding that Clarke's intention to exclude defendant from the apartment was clear and emphatic, and that any prior license or privilege were shown to have been withdrawn (see, People v. Powell, 58 N.Y.2d 1009, 1011, 461 N.Y.S.2d 1012, 448 N.E.2d 797). Clarke's testimony that defendant forced his way into the apartment, which the jury obviously credited over defendant's (who testified that, after Clarke left, he smashed things in the apartment and then continued his rampage by going out into the hallway and kicking in the unlocked door from the outside) is sufficient in itself to establish that defendant neither had, nor believed he had, permission to enter (see, People v. Bell, 131 A.D.2d 859, 861, 517 N.Y.S.2d 219; lv. denied, 70 N.Y.2d 749, 520 N.Y.S.2d 1024, 514 N.E.2d 1376).

With respect to defendant's claim that the admission of hearsay testimony of an Assistant District Attorney was error, we hold that defense counsel's general "exception" did not preserve the claim raised on appeal (see, CPL 470.05; People v. Osuna, 65 N.Y.2d 822, 824, 493 N.Y.S.2d 119, 482 N.E.2d 915; People v. Beavers, 127 A.D.2d 138, 140, 514 N.Y.S.2d 235, lv. denied, 70 N.Y.2d 642, 518 N.Y.S.2d 1034, 512 N.E.2d 560), and decline to consider it in the interest of justice. Were we to do so, we would find that any error in the admission of this testimony must, in light of the overwhelming evidence of defendant's guilt, be deemed harmless (see, People v. Crimmins, 36 N.Y.2d 230, 238, 367 N.Y.S.2d 213, 326 N.E.2d 787).

All concur except SMITH, J., who dissents in a memorandum as follows:

SMITH, Justice (dissenting).

The trial court committed reversible error when an assistant district attorney (ADA) was permitted to give rebuttal testimony concerning a statement allegedly made by the defendant to a police officer. The ADA was not present when the statement was made. I therefore dissent.

Defendant was convicted of two counts of burglary in the first degree. Count One charged that on November 10, 1988, the defendant knowingly entered and remained unlawfully in the dwelling of Ronald Clarke and while in the dwelling, caused physical injury to Ronald Clarke. Count Two charged that on the same date defendant knowingly entered and remained unlawfully in the dwelling of Ronald Clarke and while in the dwelling, he threatened the immediate use of a dangerous instrument, a metal bed slat.

The complainant, who was the defendant's brother, and the defendant gave differing accounts of the events. The complainant, Ronald Clarke, who was then forty-three years of age, testified that during that day he had drunk wine, drunk rum and smoked crack. At the time of the...