People v. Dekenipp

• Decision Date: 26 April 2013
• Citation: 2013 N.Y. Slip Op. 02869,964 N.Y.S.2d 792,105 A.D.3d 1346
• Parties: The PEOPLE of the State of New York, Respondent, v. Richard A. DEKENIPP, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

105 A.D.3d 1346

964 N.Y.S.2d 792

2013 N.Y. Slip Op. 02869

The PEOPLE of the State of New York, Respondent,

v.Richard A. DEKENIPP, Defendant–Appellant.

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

April 26, 2013.

The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of Counsel), for Defendant–Appellant.

R. Michael Tantillo, District Attorney, Canandaigua, for Respondent.

PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND MARTOCHE, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him following a jury trial of robbery in the third degree (Penal Law § 160.05), criminal mischief in the fourth degree (§ 145.00[3] ), and two counts of endangering the welfare of a child (§ 260.10[1] ), based upon his theft of two pairs of shoes from a department store while his two young children were present. We reject defendant's contention that County Court erred in permitting the store's security guard to make an in-court identification of defendant. Even assuming, arguendo, that the showup procedure was unduly suggestive, we conclude that the People established that the security guard had an independent basis for his in-court identification ( see People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608,cert. denied498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70). The security guard testified that he observed defendant over the store's closed-circuit security camera system for approximately five to eight minutes under good lighting conditions and that he was able to obtain “close ups” of defendant. The security guard thereafter observed defendant in the parking lot during daylight hours for approximately five minutes, at which point he was “ face to face” with defendant and close enough to touch him ( People v. Sanchez, 292 A.D.2d 844, 844, 738 N.Y.S.2d 636,lv. denied98 N.Y.2d 680, 746 N.Y.S.2d 470, 774 N.E.2d 235 [internal quotation marks omitted]; see People v. Peryea, 239 A.D.2d 933, 933, 661 N.Y.S.2d 820,lv. denied90 N.Y.2d 909, 663 N.Y.S.2d 521, 686 N.E.2d 233;People v. Bostic [appeal No. 2], 222 A.D.2d 1073, 1073, 636 N.Y.S.2d 516,lv. denied88 N.Y.2d 876, 645 N.Y.S.2d 450, 451, 668 N.E.2d 421, 422;People v. Nance, 185 A.D.2d 610, 610, 585 N.Y.S.2d 642,lv. denied80 N.Y.2d 976, 591 N.Y.S.2d 145, 605 N.E.2d 881).

Defendant also contends that the evidence is legally insufficient to support the robbery conviction because it did not establish that he stole shoes from the department store. We reject that contention. “[E]ven in circumstantial evidence cases, the standard for appellate review of legal sufficiency issues is whether any valid line of reasoning and permissible inferences could lead a rational person to the conclusion reached by the [factfinder] on the basis of the evidence at trial, viewed in the light most favorable to the People” ( People v. Hines, 97 N.Y.2d 56, 62, 736 N.Y.S.2d 643, 762 N.E.2d 329,rearg. denied97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396 [internal quotation marks omitted]; see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1). The evidence here included the security guard's testimony that he discovered a new shoe box containing a used pair of shoes in defendant's abandoned shopping cart. He also found a new “Transformers” shoe box containing a pair of used “Spiderman” sneakers in the store's shoe department. A police officer testified that, on the day of the incident, he discovered a pair of new “Transformers” children's sneakers at defendant's house and observed defendant's daughter wearing one new sneaker. We conclude that the evidence, although largely circumstantial, could lead a rational person to conclude that defendant stole shoes from the department store. Additionally, even assuming, arguendo, that a different result would not have been unreasonable, we conclude that, viewing the evidence in light of the elements of the crime of robbery in the third degree as charged to the jury ( see Danielson, 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), it cannot be said that the jury failed to give the evidence the weight it should be accorded ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

We reject defendant's further contention that the criminal mischief conviction is supported only by inadmissible hearsay. Any alleged error of the court in admitting in evidence the credit card receipt regarding the payment for a repair of the victim's vehicle, which was struck and damaged by defendant's vehicle during the course of defendant's flight from the store parking lot ( see People v. Michallow, 201 A.D.2d 915, 916–917, 607 N.Y.S.2d 781,lv. denied83 N.Y.2d 874, 613 N.Y.S.2d 134, 635 N.E.2d 303), is harmless inasmuch as the victim's testimony established that the cost of the repair exceeded the statutory threshold ( see People v. Singleton, 291 A.D.2d 869, 870, 737 N.Y.S.2d 728,lv. denied98 N.Y.2d 640, 744 N.Y.S.2d 770, 771 N.E.2d 843).

Defendant's contention that the court should have compelled the testimony of a defense witness who invoked her Fifth Amendment privilege against self-incrimination is likewise without merit. As a general rule, a “witness is the judge of his [or her] right to invoke the [Fifth Amendment] privilege” ( People v. Arroyo, 46 N.Y.2d 928, 930, 415 N.Y.S.2d 205, 388 N.E.2d 342;see People v. Grimes, 289 A.D.2d 1072, 1073, 735 N.Y.S.2d 857,lv. denied97 N.Y.2d 755, 742 N.Y.S.2d 615, 769 N.E.2d 361). A witness “may claim the privilege based upon the fact that the proposed testimony would be so inconsistent with prior statements under oath as to expose him [or her] to conviction for perjury” ( People v. Bagby, 65 N.Y.2d 410, 413–414, 492 N.Y.S.2d 562, 482 N.E.2d 41 [internal quotation marks omitted]; see People v. Shapiro, 50 N.Y.2d 747, 759–760, 431 N.Y.S.2d 422, 409 N.E.2d 897). Here, the witness was under indictment for perjury stemming from her allegedly false testimony at the grand jury proceedings in this matter. Based upon our review of the court's questioning of the witness outside the presence of the jury and with her counsel present, we perceive no basis to conclude that the witness's invocation of the privilege was “clearly contumacious” (Matter of Grae, 282 N.Y. 428, 434, 26 N.E.2d 963 [internal quotation marks omitted]; see Grimes, 289 A.D.2d at 1073, 735 N.Y.S.2d 857) or that “the witness'[s] answer[s] [could not] subject [her] to prosecution” ( State of New York v. Skibinski, 87 A.D.2d 974, 974, 450 N.Y.S.2d 100).

We conclude, however, that the sentence is illegal insofar as the court directed that the sentences imposed shall run consecutively to each other. “Although this issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand” ( People v. Davis, 37 A.D.3d 1179, 1180, 829 N.Y.S.2d 791,lv. denied8 N.Y.3d 983, 838 N.Y.S.2d 487, 869 N.E.2d 663 [internal quotation marks omitted]; see generally People v. Moore [appeal No. 1], 78 A.D.3d 1658, 1658, 910 N.Y.S.2d 746,lv. denied17 N.Y.3d 798, 929 N.Y.S.2d 106, 952 N.E.2d 1101). “[S]entences imposed for two or more offenses may not run...