People v. Devictor-Lopez

• Decision Date: 30 November 2017
• Docket Number: 107379
• Parties: The PEOPLE of the State of New York, Respondent, v. Edgardo E. DEVICTOR–LOPEZ, Appellant.
• Court: New York Supreme Court — Appellate Division

155 A.D.3d 1434
66 N.Y.S.3d 346

The PEOPLE of the State of New York, Respondent,
v.
Edgardo E. DEVICTOR–LOPEZ, Appellant.

107379

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

Calendar Date: October 20, 2017
Decided and Entered: November 30, 2017

66 N.Y.S.3d 347

George J. Hoffman Jr., Albany, for appellant.

Kelli P. McCoski, District Attorney, Fonda (Christina Pearson of counsel), for respondent.

Before: McCarthy, J.P., Lynch, Devine, Clark and Pritzker, JJ.

MEMORANDUM AND ORDER

McCarthy, J.P.

Appeal from a judgment of the County Court of Montgomery County (Catena, J.), rendered January 31, 2014, upon a verdict convicting defendant of the crimes of burglary in the first degree, menacing in the first degree, criminal possession of a weapon in the third degree, unlawful imprisonment in the second degree, coercion in the second degree and harassment in the second degree.

Defendant entered the apartment of his former girlfriend (hereinafter the victim), hit her, threatened her with a box cutter and refused to allow her to leave for several hours. As a result, he was convicted after trial of burglary in the first degree, menacing in the first degree, criminal possession of a weapon in the third degree, unlawful imprisonment in the second degree, coercion in the second degree and harassment in the second degree. County Court imposed a prison term of 12 years with five years of postrelease supervision for defendant's burglary conviction and shorter concurrent terms on the other convictions. Defendant appeals.

The verdict is not against the weight of the evidence. "Where, as here, 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" ( People v. Scippio, 144 A.D.3d 1184, 1185, 41 N.Y.S.3d 563 [2016] [internal quotation marks and citations omitted], lv . denied 28 N.Y.3d 1150, 52 N.Y.S.3d 302, 74 N.E.3d 687 [2017] ). Defendant challenges only his conviction of burglary in the first degree. For that charge, the People were required to prove that defendant "knowingly enter[ed] or remain[ed] unlawfully in a dwelling with intent to commit a crime therein, and when, in effecting entry or while in the dwelling or in immediate flight therefrom, he or another participant in the crime use[d] or threaten[ed] the immediate use of a dangerous instrument" ( Penal Law § 140.30[3] ). Although defendant testified—in direct contradiction of the victim's testimony—that the incident simply did not occur, he now focuses on the element of unlawfully entering, asserting that he was lawfully present because he lived in the apartment. Defendant testified that he moved into the victim's apartment a few days after they began their relationship, and he lived there every day until this incident. He testified that the victim gave him two keys to the front doors, he kept his clothing and personal papers there and he received mail at that address. On cross-examination, the People elicited that the pedigree section of the police report completed in connection with defendant's arrest on these charges listed an address for defendant that was not the victim's apartment.

66 N.Y.S.3d 348

The victim testified that defendant stayed at her apartment three to five nights per week while they were together. According to her, they were still talking at the time of the incident, but they had not been together for a few weeks. She testified that she never asked defendant to live in her apartment, put his name on the lease or gave him a key. She further testified that he used the address to receive some important mail because her mailbox had a lock, but he did not receive all of his mail there. He left some clothing at her house, but he normally brought a bag with his clothing and personal items if he planned to stay over.

The victim testified that when she returned home on the night of the incident, she did not see anyone in the house, and the doors were locked before she went to sleep; the front door was still locked when she finally tried to escape from the apartment. Contrary to defendant's testimony that the bathroom window lock was operational, the victim and two police officers testified that the lock did not work and the window could not be securely shut. A wooden pallet was discovered against the house underneath that window, and handprints on the outside of the glass indicated that it had been pushed up. Viewed in a neutral light and giving deference to the jury's credibility determinations, the evidence supports the findings that defendant did not live in the victim's apartment at the time of the incident, he entered through the bathroom window while she was asleep, with the intent to commit a crime, and he threatened use of a dangerous instrument while in the dwelling (see People v. Cooley, 149 A.D.3d 1268, 1269–1270, 52 N.Y.S.3d 528 [2017], lv. denied 30 N.Y.3d 979, 67 N.Y.S.3d 581, 89 N.E.3d 1261 [Oct. 24, 2017]; People v. Davis, 105 A.D.3d 1095, 1096–1097, 962 N.Y.S.2d 739 [2013], lv. denied 21 N.Y.3d 1003, 971 N.Y.S.2d 255, 993 N.E.2d 1277 [2013] ). Thus, the conviction for burglary in the first degree is not against the weight of the evidence (see People v. Lewis, 99 A.D.3d 1104, 1104, 952 N.Y.S.2d 309 [2012], lv. denied 21 N.Y.3d 1017, 971 N.Y.S.2d 499, 994 N.E.2d 395 [2013] ).

Defendant contends that he was denied the effective assistance of counsel because counsel failed to object during summation,¹ failed to request any hearings regarding the tape of the victim's 911 call, agreed to proceed without defendant being present, provided a cursory opening statement and made various mistakes during his summation. "A defendant's right to the effective assistance of counsel will be satisfied so long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation" ( People v. Muriel, 75 A.D.3d 908, 910, 905 N.Y.S.2d 363 [2010] [internal quotation marks and citations omitted], lv . denied 15 N.Y.3d 922, 913 N.Y.S.2d 649, 939 N.E.2d 815 [2010] ). In summation, the prosecutor stated several times that he thought defendant's testimony contained lies and was "completely false," whereas he thought the victim gave an accurate and honest account of what happened. This was not a situation where the prosecutor misrepresented the evidence, encouraged the jury to find guilt based on facts not in evidence or improperly shifted the burden of proof (compare

66 N.Y.S.3d 349

People v. Wright, 25 N.Y.3d 769, 780–781, 16 N.Y.S.3d 485, 37 N.E.3d 1127 [2015] ; People v. Fisher, 18 N.Y.3d 964, 966–967, 944 N.Y.S.2d 453, 967 N.E.2d 676 [2012] ; People v. Wright, 133 A.D.3d 1097, 1097–1098, 20 N.Y.S.3d 689 [2015] ). Although "a prosecutor may not express personal opinions concerning the credibility of witnesses who...