People v. Davis

• Citation: 200 A.D.3d 1200,157 N.Y.S.3d 580
• Decision Date: 09 December 2021
• Docket Number: 110919
• Parties: The PEOPLE of the State of New York, Respondent, v. Maurice DAVIS, Appellant.
• Court: New York Supreme Court — Appellate Division

200 A.D.3d 1200
157 N.Y.S.3d 580

The PEOPLE of the State of New York, Respondent,
v.
Maurice DAVIS, Appellant.

110919

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

Calendar Date: October 12, 2021
Decided and Entered: December 9, 2021

157 N.Y.S.3d 583

Dana L. Salazar, East Greenbush, for appellant.

Mary Pat Donnelly, District Attorney, Troy (George J. Hoffman Jr. of counsel), for respondent.

Before: Garry, P.J., Lynch, Aarons and Pritzker, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

Appeal from a judgment of the County Court of Rensselaer County (Young, J.), rendered October 17, 2018, upon a verdict convicting defendant of the crimes of grand larceny in the fourth degree, criminal possession of stolen property in the fourth degree and petit larceny.

On September 16, 2017, defendant and his brother allegedly stole two televisions and a sound bar from a Walmart store located in the Town of East Greenbush, Rensselaer County. Defendant's brother was arrested while allegedly engaged in a similar crime at the store the next day, and, during an ensuing custodial interview with police, he named defendant as his accomplice in the subject theft. Officers with the East Greenbush Police Department (hereinafter EGPD) then presented the brother with still images from the store's surveillance video at the time of the subject theft, and the brother identified defendant as the person in certain of those stills, further providing defendant's date of birth. With that information, officers obtained a known photograph of defendant (hereinafter referred to as the known photograph) from a law enforcement database, compared that photograph to the still images and arrested him. Defendant was thereafter charged by indictment with grand larceny in the fourth degree, criminal possession of stolen property in the fourth degree and petit larceny. He thereafter moved for, among other relief, a

157 N.Y.S.3d 584

Wade hearing, after which County Court determined that the aforementioned identification was not overly suggestive. After a one-day jury trial, defendant was found guilty as charged. Defendant was thereafter sentenced, as a second felony offender, to concurrent prison terms of 2 to 4 years for his grand larceny and possession convictions and to a lesser concurrent term for the petit larceny conviction. Defendant appeals.

Defendant contends that the verdict was legally insufficient and against the weight of the evidence because the People did not establish his identity. "When considering a challenge to the legal sufficiency of the evidence, [this Court] view[s] the evidence in the light most favorable to the People and evaluate[s] 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. Lukosavich, 189 A.D.3d 1895, 1895–1896, 135 N.Y.S.3d 685 [2020] [internal quotation marks and citations omitted]). Importantly, "[a] defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense" ( CPL 60.22[1] ). "[W]hen undertaking a weight of the evidence review, we must first determine whether, based on all the credible evidence, a different finding would not have been unreasonable and then, if not, 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. Lukosavich, 189 A.D.3d at 1896, 135 N.Y.S.3d 685 [internal quotation marks and citations omitted]). "When conducting this review, we consider the evidence in a neutral light and defer to the jury's credibility assessments" ( People v. Butcher, 192 A.D.3d 1196, 1198, 142 N.Y.S.3d 665 [2021] [internal quotation marks and citations omitted], lv denied 36 N.Y.3d 1118, 146 N.Y.S.3d 190, 169 N.E.3d 548 [2021] ).

"Grand larceny in the fourth degree requires the People to prove that, with intent to deprive another of property or to appropriate the same to himself, herself or to a third person, the defendant steals property having a value of more than $1,000" ( People v. Lukosavich, 189 A.D.3d at 1896, 135 N.Y.S.3d 685 ; see Penal Law §§ 155.05[1] ; 155.30[1]). As to criminal possession of stolen property in the fourth degree, the People must prove that the defendant "knowingly possesse[d] stolen property, with intent to benefit himself[,] [herself] or a person other than an owner thereof or to impede the recovery by an owner thereof, and when ... [t]he value of the property exceeds [$1,000]" ( Penal Law § 165.45[1] ). "A person is guilty of petit larceny when he [or she] steals property" ( Penal Law § 155.25 ). Finally, "[a]s with all convictions, the People must prove the issue of identity beyond a reasonable doubt — that is, that the defendant was the person who committed the charged crimes" ( People v. Green, 194 A.D.3d 1106, 1108, 146 N.Y.S.3d 360 [2021] ).

At trial, the assistant manager of the store testified that, on September 16, 2017, two televisions and a sound bar had been taken from the store and that the value of these items totaled $2,174 before sales tax. He further testified that, upon notification of pushed-open entrance doors in a closed section of the store, he reviewed surveillance video of the door, and he subsequently saved the footage to a CD that he gave to police when he reported the incident,

157 N.Y.S.3d 585

along with still images from that video. The CD with the video and four of the still images were admitted into evidence and published to the jury. The CD contains six videos allegedly depicting defendant pushing a cart to the electronics department where the individual alleged to be the brother loads into the cart two large, flat boxes bearing the Samsung logo and one relatively smaller box. Two minutes later, surveillance video shows the two individuals exiting the store through an apparently nonresponsive automatic door, which the individuals then pushed open to exit; the individual alleged to be defendant physically pushed the cart containing the three above-mentioned boxes through the doors and out of the store. The face of the person alleged to be defendant is visible in the surveillance video just before he leaves the store.

Griffin Hotaling, an officer with the EGPD, testified that he responded to the assistant manager's call about the larceny. Hotaling reviewed the surveillance video and still images provided by the assistant manager and that, at some point the day after the alleged theft, he was able to identify both individuals in the still images. Hotaling identified defendant in court as one of the individuals depicted. Michael Guadagnino, a detective with the EGPD, testified that he spoke to the brother who gave him defendant's name in connection with the subject crimes.¹ Guadagnino stated that he then compared one of the still images to the known photograph associated with defendant's name in the "RICI system" and concluded that the individual depicted in the still image was defendant. A copy of the known photograph was received into evidence and Guadagnino identified defendant as the individual depicted in the surveillance video.

The brother testified, after asserting his Fifth Amendment privilege against self-incrimination, that he did not recall going with defendant to the store on September 16, 2017 and stealing two televisions and a sound bar. He also did not recall his conversation with Hotaling or Guadagnino during their investigation. The People then showed the brother the surveillance video still images, and he testified that he had never seen the images before but that one of the individuals depicted in two of the images looked like him and the individual in another of the images "could be" defendant; with respect to the latter, the brother qualified that he was unsure because the image was "kind of blurry."

Viewed in the light most favorable to the People, we find that the independent evidence proffered by the People – the surveillance video coupled with the testimony of the officers and the known photograph – sufficiently corroborated the very equivocal accomplice testimony offered by the brother (see People v. Pichardo, 160 A.D.3d 1044, 1047–1048, 74 N.Y.S.3d 152 [2018], lv denied 31 N.Y.3d 1151, 83 N.Y.S.3d 433, 108 N.E.3d 507 [2018] ; People v. Myrick, 135 A.D.3d 1069, 1073, 22 N.Y.S.3d 691 [2016] ; People v. Pagan, 103 A.D.3d 978, 981, 962 N.Y.S.2d 372 [2013], lv denied 21 N.Y.3d 1018, 971 N.Y.S.2d 500, 994 N.E.2d 396 [2013] ).² As to the weight of the evidence, another verdict would not have been unreasonable because the jury could have discredited the equivocal testimony from the brother and found certain of the low-quality still images not

157 N.Y.S.3d 586

to be probative, and rationally concluded that the People did not prove, beyond a reasonable doubt, that defendant is one of the individuals depicted. That said, viewing the evidence in a neutral light, the surveillance video,...