People v. Graves

• Decision Date: 15 June 2018
• Docket Number: KA 15–00100,1368
• Citation: People v. Graves, 163 A.D.3d 16, 78 N.Y.S.3d 613 (N.Y. App. Div. 2018)
• Parties: The PEOPLE of the State of New York, Respondent, v. Andrew J. GRAVES, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

163 A.D.3d 16

78 N.Y.S.3d 613

The PEOPLE of the State of New York, Respondent,

v.Andrew J. GRAVES, Defendant–Appellant.

1368

KA 15–00100

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

Decided June 15, 2018

REEVE BROWN PLLC, ROCHESTER (GUY A. TALIA OF COUNSEL), FOR DEFENDANT–APPELLANT.

BARRY L. PORSCH, DISTRICT ATTORNEY, WATERLOO, FOR RESPONDENT.

PRESENT: WHALEN, P.J., CENTRA, DEJOSEPH, NEMOYER, AND WINSLOW, JJ.

OPINION AND ORDER

Opinion by NeMoyer, J.:

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Defendant Andrew J. Graves challenges his convictions for vandalizing cars at an auto dealership. We reject his challenges to the legal sufficiency and weight of the evidence underlying those convictions, and we decline to review his unpreserved challenges to the restitution award as a matter of discretion in the interest of justice. We therefore affirm.

FACTS

In March 2013, a group of young people took an ill-advised nocturnal trek to Bill Cram Chevrolet, a car dealership in the Town of Seneca Falls, Seneca County. Once there, the group keyed 57 cars. Police investigated, and defendant was identified as one of the vandals. Although he initially denied any involvement, defendant eventually confessed to participating in the vandalism spree. According to defendant's written confession, he personally damaged approximately four to six cars.

Defendant was thereafter indicted on charges of criminal mischief in the second degree ( Penal Law § 145.10 ) and conspiracy in the fifth degree (§ 105.05[1] ). The victim of these crimes, according to the indictment, was "Bill Cram Chevrolet."

At trial, one of the admitted vandals testified and implicated defendant as a perpetrator. Another eyewitness also testified against defendant and identified him as one of the vandals. A police officer relayed defendant's confession to the jury.

Several employees of Bill Cram Chevrolet testified about the structure of the auto dealership and the damages it suffered as a result of the vandalism. Although the amount of damage personally attributable to defendant remains hotly contested, it is undisputed that, in the aggregate, the group caused approximately $40,000 worth of damages to Bill Cram Chevrolet.

Defendant testified at trial, retracted his confession, and denied any involvement in the crimes. Defendant's mother and his therapist testified about his various autism-related developmental disabilities, presumably to cast doubt on his confession. Finally, defendant's friend—a convicted sex offender—offered alibi testimony on defendant's behalf, although the purported alibi was very weak and is barely mentioned on appeal.

Defendant was convicted as charged, and he was subsequently sentenced to a state prison term of 1½ to 4½ years. Defendant was also ordered to pay restitution (to an undefined entity) in the amount of $40,743.19. Critically, defendant offered no objection to the restitution order on any ground. Defendant now appeals.

DISCUSSION

I

Defendant first challenges the legal sufficiency and weight of the evidence underlying his criminal mischief conviction (see generally People v. Delamota, 18 N.Y.3d 107, 113, 116–117, 936 N.Y.S.2d 614, 960 N.E.2d 383 [2011] ; People v. Romero, 7 N.Y.3d 633, 636–644, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] ).¹ "A person is guilty of criminal mischief in the second degree when with intent to damage property of another person, and having no right to do so nor any reasonable ground to believe that he has such right, he damages property of another person in an amount exceeding [$1,500]" ( Penal Law § 145.10 ). Defendant argues that this conviction is against the weight of the evidence on three elements: the victim's personhood, the value of the damage, and his identity as a perpetrator. We will address each claim in turn.

A. Personhood

Defendant first contends that the People did not adequately prove that the identified victim in this case—"Bill Cram Chevrolet"—qualifies as a "person" for purposes of the criminal mischief statute. We disagree. In accordance with Penal Law § 145.10, the jury was instructed that, in order to convict defendant of criminal mischief in the second degree, the People must prove beyond reasonable doubt that he damaged the property of "another person." For these purposes, " ‘[p]erson’ means a human being, and where appropriate, a public or private corporation, an unincorporated association, a partnership, a government or a governmental instrumentality" (§ 10.00[7] ). Given the background testimony offered by the employees regarding Bill Cram Chevrolet and its operations, and crediting the jurors' common sense and life experience, the jury had ample basis to infer that Bill Cram Chevrolet was either a "private corporation" or a "partnership." Under the circumstances, either structure would qualify as an "appropriate" nonhuman "person" within the meaning of section 10.00(7) (see People v. Assi, 14 N.Y.3d 335, 340–341, 902 N.Y.S.2d 6, 928 N.E.2d 388 [2010] ; People ex rel. Shaffer v. Kuhlmann, 173 A.D.2d 1034, 1035, 570 N.Y.S.2d 695 [3d Dept. 1991], lv denied 78 N.Y.2d 856, 574 N.Y.S.2d 937, 580 N.E.2d 409 [1991] ).

We acknowledge that the People never definitively established Bill Cram Chevrolet's precise corporate form. In light of the description of the enterprise offered by the employees, however, formal corporate documentation was not strictly necessary to prove, beyond reasonable doubt, that Bill Cram Chevrolet qualified as an "appropriate" nonhuman person for purposes of section 10.00(7). Indeed, the Court of Appeals in Assi found that a synagogue was a nonhuman "person" under section 10.00(7) because it was either a "religious corporation" or an unincorporated association ( 14 N.Y.3d at 340–341, 902 N.Y.S.2d 6, 928 N.E.2d 388 ), and the high Court did not seem bothered by the lack of precision on the point.²

Defendant does not argue otherwise (i.e., he does not claim that, by failing to adduce Bill Cram Chevrolet's precise corporate form, the People failed to satisfactorily establish any of the potential nonhuman personhood categories). In fact, defendant's brief concedes that Bill Cram Chevrolet is a nonhuman person under section 10.00(7). Rather, invoking the familiar rule that factual sufficiency is measured against the elements as charged to the jury without objection (see People v. Noble, 86 N.Y.2d 814, 815, 633 N.Y.S.2d 469, 657 N.E.2d 490 [1995] ), defendant argues that County Court's failure to read the Penal Law's definition of a "person" to the jury means that the People "were required to prove that property of another human being was damaged" (emphasis added).

We are unpersuaded by defendant's logic. The court told the jury that defendant must have damaged the property of "another person"—not "another human being"—and it is common knowledge that personhood can and sometimes does attach to nonhuman entities like corporations or animals (see e.g. Citizens United v. Federal Election Commn., 558 U.S. 310, 343, 130 S.Ct. 876, 175 L.Ed.2d 753 [2010] ; Palila v. Hawaii Dept. of Land & Natural Resources, 852 F.2d 1106, 1107 [9th Cir.1988] ; State v. Fessenden, 258 Or.App. 639, 640, 310 P.3d 1163, 1164 [2013], affd 355 Or. 759, 333 P.3d 278 [2014] ; see also Matter of Nonhuman Rights Project, Inc. v. Presti, 124 A.D.3d 1334, 1335, 999 N.Y.S.2d 652 [4th Dept. 2015], lv. denied 26 N.Y.3d 901, 2015 WL 5125507 [2015] ). Indeed, the Court of Appeals has written that personhood is "not a question of biological or ‘natural’ correspondence" ( Byrn v. New York City Health & Hosps. Corp., 31 N.Y.2d 194, 201, 335 N.Y.S.2d 390, 286 N.E.2d 887 [1972], appeal dismissed 410 U.S. 949, 93 S.Ct. 1414, 35 L.Ed.2d 683 [1973], reh denied 411 U.S. 940, 93 S.Ct. 1889, 36 L.Ed.2d 404 [1973] ), and we can "presume[ ]" that the jurors had " ‘sufficient intelligence’ to make [the] elementary logical inferences presupposed by the language of [the court's] charge" ( People v. Samuels, 99 N.Y.2d 20, 25, 750 N.Y.S.2d 828, 780 N.E.2d 513 [2002], quoting People v. Radcliffe, 232 N.Y. 249, 254, 133 N.E. 577 [1921] ). In short, defendant's personhood argument effectively transforms an undefined but commonly understood term into an incorrectly defined term, and we decline to follow him down that path.³

B. Value

Next, defendant argues that the criminal mischief conviction is against the weight of the evidence on the element of value because the People failed to prove that he personally caused over $1,500 in damage to the vehicles. Defendant relies on Penal Law § 20.15 for this argument, which says that when "two or more persons are criminally liable for an offense which is divided into degrees, each person is guilty of such degree as is compatible with ... his own accountability for an aggravating fact or circumstance."

For purposes of this analysis, we will assume, arguendo, that the People did not satisfactorily prove that defendant personally caused over $1,500 in damage. It remains, however, that the jury was instructed—without objection—that "[i]f it is proven ... that the defendant acted in concert with others, he is thus criminally liable for their conduct. The extent or degree of the defendant's participation in the crime does not matter " (emphasis added). Perhaps this instruction was inconsistent with section 20.15 (see People v. Castro, 55 N.Y.2d 972, 973, 449 N.Y.S.2d 184, 434 N.E.2d 253 [1982] ),⁴ but it still forecloses defendant's claim of factual insufficiency as to value. After all, it is extraordinarily well established that "the Appellate Division is constrained to weigh the evidence in light of the elements of the crime as charged without objection" ( Noble, 86 N.Y.2d at 815, 633 N.Y.S.2d 469, 657 N.E.2d 490 ), and the jury in this case was told that the "extent or degree" of defendant's personal participation in the vandalism "does not matter" to his guilt. Accordingly, since it is undisputed that the group as a whole did well over $1,500 in damage, it...