People v. Johnson

• Decision Date: 01 July 2021
• Docket Number: 110820
• Citation: 197 A.D.3d 61,150 N.Y.S.3d 401
• Parties: The PEOPLE of the State of New York, Respondent, v. Angelo JOHNSON, Appellant.
• Court: New York Supreme Court — Appellate Division

197 A.D.3d 61

150 N.Y.S.3d 401

The PEOPLE of the State of New York, Respondent,

v.Angelo JOHNSON, Appellant.

110820

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

Calendar Date: May 27, 2021

Decided and Entered: July 1, 2021

Carolyn B. George, Albany, for appellant.

Meagan K. Galligan, District Attorney, Monticello (Lisa Marie Bondarenka of counsel), for respondent.

Before: Lynch, J.P., Clark, Aarons and Colangelo, JJ.

OPINION AND ORDER

Lynch, J.P. Appeal from judgment of the County Court of Sullivan County (LaBuda, J.), rendered September 7, 2018, upon a verdict convicting defendant of the crime of burglary in the second degree.

Defendant was charged by indictment with burglary in the second degree in connection with the theft of property from an inn located in Sullivan County on the morning of November 6, 2016. During defendant's arraignment, the People moved to amend the indictment, revealing that they had mistakenly cited the Penal Law provision pertaining to reckless endangerment of property and clarifying that they intended to cite Penal Law § 140.25(2), the statutory provision for burglary in the second degree. County Court granted the People's motion, but the amended indictment again cited the wrong Penal Law section, referencing the provision for criminal tampering in the first degree.

Defendant subsequently filed an omnibus motion seeking, among other things, inspection of the grand jury minutes, dismissal of the indictment¹ and suppression of certain statements he had made to law enforcement. Upon an in camera inspection of the grand jury minutes, County Court denied defendant's motion to dismiss the indictment – finding no irregularities or illegalities in the grand jury proceedings – but granted defendant's request for a suppression hearing on the admissibility of his statements to police. A Huntley hearing was held on September 15, 2017, at which defense counsel cross-examined the People's witness. At the end of the testimony on that date, defense counsel confirmed that he needed to review one of the People's exhibits with defendant before deciding whether to put forth any evidence, and the hearing was adjourned accordingly. A new attorney was subsequently assigned to represent defendant² and, during a November 13, 2017 appearance, revealed that she did not wish to introduce any evidence for the continuation of the Huntley hearing and defendant confirmed that he did not wish to testify. After defense counsel made an argument in support of suppression, County Court denied the motion, subject to certain redactions, finding defendant's statements to law enforcement to be admissible.

A jury trial ensued, following which defendant was convicted of burglary in the second degree. County Court denied defendant's CPL 330.30 motion to set aside the verdict and the People filed a second felony offender statement. Based upon information as to defendant's extensive criminal history that was revealed during a March 2018 appearance on the second felony offender statement, County Court ordered a hearing to determine whether defendant should be sentenced as a persistent felony offender. Following such a hearing, County Court sentenced defendant, as a persistent felony offender (see Penal Law § 70.10[2] ), to a prison term of 15 years to life. Defendant appeals.

Defendant contends that County Court erred in denying the branch of his CPL 330.30 motion seeking to set aside the verdict on the ground that the amended indictment cited an incorrect Penal Law provision. CPL 330.30(1) permits a trial court to set aside or modify a verdict at any time prior to sentencing "upon ... [a]ny ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court" (see People v. Bombard, 159 A.D.3d 1119, 1120, 71 N.Y.S.3d 759 [2018], lv denied 31 N.Y.3d 1145, 83 N.Y.S.3d 427, 108 N.E.3d 501 [2018] ). To the extent preserved, defendant's challenge to the amended indictment is unavailing. Although the original indictment erroneously denominated the crime charged as Penal Law § 145.25(2) – which pertains to reckless endangerment of property – the People cited the Penal Law provision pertaining to burglary in the second degree during defendant's arraignment, County Court noted that defendant was being arraigned on that charge and defendant revealed his awareness of being charged with that crime. Notwithstanding that the handwritten notation amending the indictment also cited an incorrect Penal Law provision, the face of the indictment stated that defendant was being charged with burglary in the second degree and alleged facts constituting all of the elements of that crime. In these circumstances, the typographical errors amounted to mere technical defects that neither changed the theory of the People's case nor constituted jurisdictional impediments requiring reversal (see People v. Jackson, 128 A.D.3d 1279, 1279–1280, 9 N.Y.S.3d 739 [2015], lv denied 26 N.Y.3d 930, 17 N.Y.S.3d 93, 38 N.E.3d 839 [2015] ; People v. Garcia, 79 A.D.3d 1248, 1249, 911 N.Y.S.2d 723 [2010], lv denied 16 N.Y.3d 797, 919 N.Y.S.2d 514, 944 N.E.2d 1154 [2011] ).

Nor did County Court err in denying the branch of defendant's CPL 330.30 motion seeking to set aside the verdict as legally insufficient. When reviewing a jury verdict for legal sufficiency, this Court is required "to determine whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the finder of fact 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. Bombard, 159 A.D.3d at 1120, 71 N.Y.S.3d 759 [internal quotation marks, brackets and citations omitted]; see People v. Rudge, 185 A.D.3d 1214, 1215, 126 N.Y.S.3d 247 [2020], lv denied 35 N.Y.3d 1070, 129 N.Y.S.3d 393, 152 N.E.3d 1195 [2020] ).

As pertinent here, "[a] person is guilty of burglary in the second degree when he [or she] knowingly enters or remains unlawfully in a building with intent to commit a crime therein, and when ... [t]he building is a dwelling" ( Penal Law § 140.25[2] ). A dwelling means "a building which is usually occupied by a person lodging therein at night" ( Penal Law § 140.00[3] ). The People are not typically required to demonstrate the precise crime that the defendant intended to commit to support a burglary conviction (see People v. Lewis, 5 N.Y.3d 546, 552, 807 N.Y.S.2d 1, 840 N.E.2d 1014 [2005] ; People v. Brown, 251 A.D.2d 694, 695–696, 674 N.Y.S.2d 149 [1998], lv denied 92 N.Y.2d 1029, 684 N.Y.S.2d 494, 707 N.E.2d 449 [1998] ). However, where, as here, "the People particularize ... the precise crime that the defendant intended to commit" – in this case, larceny – the People will be held to that theory ( People v. Edmonds, 165 A.D.3d 1494, 1495, 85 N.Y.S.3d 282 [2018] ; see People v. Barnes, 50 N.Y.2d 375, 379 n. 3, 429 N.Y.S.2d 178, 406 N.E.2d 1071 [1980] ).

At trial, a long-term resident of the inn (hereinafter the victim) testified that she was renting two rooms on November 6, 2016 – room 109 (which she used as her living quarters) and room 107 (where she stored personal belongings). Upon entering room 107 around 10:00 a.m., the victim found it in "disarray," with her clothes, purses and suitcases missing. The victim reported the theft to the inn manager, testifying that no other person was staying in either of her rooms and she had not given anyone permission to enter. In response, the manager reviewed surveillance video from the morning of November 6, 2016. When asked to describe the surveillance footage at trial, the manager explained that an internal camera captured an individual exit room 107 on the morning in question, then proceed down a hallway and enter a communal bathroom, and thereafter walk around the building. The manager identified that individual as defendant, explaining that he was familiar with defendant because he had stayed at the inn on several prior occasions. The manager clarified that defendant was not a guest of the inn on the date in question and "did not belong" in room 107.

The People also published to the jury a portion of the surveillance footage from November 6, 2016, which shows the following. At approximately 5:34 a.m., an outside camera captures an individual with light colored sneakers walking towards a light near a window at the rear of the inn. Around 6:15 a.m., the camera depicts items being dropped from the same window to the ground outside. Approximately three minutes later, a camera inside of the inn captures an individual with light colored sneakers exit a room – identified by the manager as room 107 – into the hallway, with what appears to be a bath towel or a white shirt on his head as if to obstruct his face. The individual looks down the hallway and enters a room – identified by the manager and a detective as a communal bathroom. At around 6:34 a.m., an individual wearing the same clothing exits the bathroom – this time without anything draped over his head. A camera in the lobby of the inn then captures the same individual walk through the lobby and up a flight of stairs. Thereafter, around 6:38 a.m., a camera depicts the individual exit the inn and pick up certain items that had been dropped from the room 107 window. A different camera later captures this individual rolling a suitcase away from the inn and carrying another bag in his other hand.

A detective who watched the surveillance video identified defendant as the individual depicted, explaining that he had known defendant for years prior to the incident. The detective revealed that, in viewing the footage, he was able to determine that the point of entry was through "a back window at the rear of the hotel," which he described as either room 107 or 109. The People also entered into evidence a...