People v. Elwood

• Decision Date: 20 January 2011
• Citation: People v. Elwood, 915 N.Y.S.2d 694, 80 A.D.3d 988 (N.Y. App. Div. 2011)
• Parties: The PEOPLE of the State of New York, Respondent, v. Jonathan W. ELWOOD, Appellant.
• Court: New York Supreme Court — Appellate Division

915 N.Y.S.2d 694

80 A.D.3d 988

The PEOPLE of the State of New York, Respondent,

v.Jonathan W. ELWOOD, Appellant.

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

Jan. 20, 2011.

Thomas F. Garner, Middleburgh, for appellant.

Joseph A. McBride, District Attorney, Norwich (Michael J. Genute of counsel), for respondent.

Before: SPAIN, J.P., LAHTINEN, KAVANAGH, STEIN and GARRY, JJ.

STEIN, J.

Appeals (1) from a judgment of the County Court of Chenango County (Sullivan, J.), rendered January 25, 2008, upon a verdict convicting defendant of the crimes of burglary in the first degree (three counts), criminal use of a firearm in the first degree and petit larceny, and (2) by permission, from an order of said court, entered December 2, 2008, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

One evening while the victim was sleeping, defendant and Stephen Ohl broke down the door and entered the victim's home. When they encountered the victim, Ohl hit her in the head, causing her to fall to the floor. Ohl then lifted her off the floor and steered her into the living room to a sofa bed. Both Ohl and defendant stole cash from the victim's purse and Ohl sexually assaulted the victim while defendant stood by with an AK-47 rifle in his hand. According to the victim, defendant asked if there was any more money and where all the telephones were in the home. Defendant pulled the telephone cords out of the walls and Ohl used them to tie up the victim.

Ohl and defendant were eventually located and defendant gave an oral and written confession to the police. Defendant was charged in a 10-count indictment with predatory sexual assault, four counts of burglary in the first degree, rape in the first degree, criminal sexual act in the first degree, criminal use of a firearm in the first degree, robbery in the first degree and petit larceny. During the course of the ensuing jury trial, County Court dismissed one count of burglary and the count of robberyin the first degree. The jury found defendant guilty of three counts of burglary in the first degree, criminal use of a firearm in the first degree andpetit larceny and acquitted him of the remaining counts charged in the indictment. Defendant was sentenced to concurrent prison terms of 20 years with five years of postrelease supervision for each of the three burglary convictions and the conviction of criminal use of a firearm. In addition, defendant was sentenced to one year in jail for the petit larceny conviction, to run concurrently with the other sentences. County Court denied defendant's subsequent CPL 440.10 motion without a hearing. Defendant now appeals from the judgment of conviction and, by permission, from the order denying his CPL article 440 motion.

Defendant correctly argues that the charge of criminal use of a firearm in the first degree constitutes a noninclusory concurrent count of burglary in the first degree and, accordingly, should have been dismissed. The charge of criminal use of firearm in the first degree required proof that defendant committed a class B felony and displayed what appeared to be a firearm ( see Penal Law § 265.09[1][b] ). Defendant was also charged with and convicted of burglary in the first degree based upon the display of the same weapon ( see Penal Law § 140.30[4] ). Inasmuch as the charge of criminal use of a firearm in the first degree "was subsumed by the elements of the burglary in the first degree charge" ( People v. Hendrie, 24 A.D.3d 871, 876, 805 N.Y.S.2d 464 [2005], lv. denied 6 N.Y.3d 776, 811 N.Y.S.2d 343, 844 N.E.2d 798 [2006] ), defendant's conviction of criminal use of a firearm in the first degree must be reversed and the sentence imposed thereon vacated ( see People v. Brown, 67 N.Y.2d 555, 560-561, 505 N.Y.S.2d 574, 496 N.E.2d 663 [1986], cert. denied 479 U.S. 1093, 107 S.Ct. 1307, 94 L.Ed.2d 161 [1987] ).

However, contrary to defendant's contention, we are satisfied that the remaining charges of which defendant was convicted were supported by legally sufficient evidence and were in accord with the weight of the evidence. The victim identified defendant as one of the two men who broke down the door and entered her home while she was sleeping. The victim further testified that defendant stood by holding a weapon while Ohl sexually assaulted her, and that defendant stole money from her and ripped telephone cords from the walls, which Ohl used to tie her up. Defendant's pretrial confession to the police was also received in evidence. In addition, Ohl testified as to defendant's role in the crimes. While defendant's testimony at trial differed from that of the victim and from his previous statements to the police, the jury clearly rejected his version of the events as related at trial. Viewing the evidence in the light most favorable to the People, we find a valid line of reasoning and evidence tosupport the elements of burglary in the first degree and petit larceny ( see Penal Law § 140.30[2], [3], [4]; Penal Law § 155.25; People v. Acosta, 80 N.Y.2d 665, 672, 593 N.Y.S.2d 978, 609 N.E.2d 518 [1993]; People v. Haskell, 68 A.D.3d 1358, 1359, 890 N.Y.S.2d 718 [2009] ). Moreover, while a different verdict would not have been unreasonable, considering the evidence in a neutral light and according deference to the jury's credibility assessments, made after an opportunity to hear the witnesses' testimony and observe their demeanor, we find that defendant's convictions were not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 644, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006]; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]; People v. Johnson, 70 A.D.3d 1188, 1189-1190, 896 N.Y.S.2d 199 [2010];People v. Lane, 47 A.D.3d 1125, 1126, 849 N.Y.S.2d 719 [2008], lv. denied 10 N.Y.3d 866, 860 N.Y.S.2d 492, 890 N.E.2d 255 [2008] ).

Defendant's challenges to his convictions based upon various claimed errors by County Court were not preserved for our review ( see People v. Bonaparte, 78 N.Y.2d 26, 32, 571 N.Y.S.2d 421, 574 N.E.2d 1027 [1991]; People v. Edwards, 69 A.D.3d 755, 755, 891 N.Y.S.2d 661 [2010], lv. denied 15 N.Y.3d 749, 906 N.Y.S.2d 822, 933 N.E.2d 221 [2010]; People v. Schwing, 9 A.D.3d 685, 686, 779 N.Y.S.2d 816 [2004], lv. denied 3 N.Y.3d 742, 786 N.Y.S.2d 821, 820 N.E.2d 300 [2004]; People v. Williams, 8 A.D.3d 963, 964, 778 N.Y.S.2d 244 [2004], lv. denied 3 N.Y.3d 683, 784 N.Y.S.2d 21, 817 N.E.2d 839 [2004], cert. denied 543 U.S. 1070, 125 S.Ct. 911, 160 L.Ed.2d 805 [2005] ). Nor are we persuaded that defendant was deprived of the effective assistance of counsel by reason of counsel's failure to preserve such challenges. To begin with, defendant was not entitled to a perfect trial and the record does not support a finding that defendant was deprived of a fair trial ( see People v. Butler, 273 A.D.2d 613, 615, 616, 711 N.Y.S.2d 525 [2000], lv. denied 95 N.Y.2d 933, 721 N.Y.S.2d 609, 744 N.E.2d 145 [2000] ). Furthermore, defense counsel made appropriate pretrial motions, consistently set forth a reasonable defense theory, extensively cross-examined the People's witnesses and made appropriate trial motions. Notably, defense counsel was able to...