People v. Jones

• Decision Date: 02 November 2017
• Docket Number: 107755.
• Citation: 155 A.D.3d 1111,63 N.Y.S.3d 749
• Parties: The PEOPLE of the State of New York, Respondent, v. Albert J. JONES, Appellant.
• Court: New York Supreme Court — Appellate Division

155 A.D.3d 1111

63 N.Y.S.3d 749

The PEOPLE of the State of New York, Respondent,

v.Albert J. JONES, Appellant.

107755.

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

Nov. 2, 2017.

Pamela B. Bleiwas, Ithaca, for appellant.

Joseph G. Fazzary, District Attorney, Watkins Glen (Matthew C. Hayden of counsel), for respondent.

Before: PETERS, P.J., EGAN JR., DEVINE, MULVEY and PRITZKER, JJ.

MULVEY, J.

Appeal from a judgment of the County Court of Schuyler County (Morris, J.), rendered May 21, 2015, upon a verdict convicting defendant of the crimes of burglary in the second degree (four counts) and criminal possession of stolen property in the fifth degree (five counts).

Following an investigation, it was determined that, in late May and early June 2014, defendant and codefendants Jacob Payne and Ralph Starace stole farm machinery and associated metal components from the farmhouse and surrounding property of William Dodge (hereinafter the victim), who was in the business of purchasing and selling used farm equipment from his 90–acre farm. Defendant, Payne and Starace then transported the stolen metal to various scrap yards, where it was sold for cash. Defendant was thereafter charged by indictment with five counts of burglary in the second degree and five counts of criminal possession of stolen property in the fifth degree. At the beginning of defendant's jury trial, one burglary count was dismissed and he was thereafter convicted of the remaining nine counts.¹ County Court sentenced defendant to an aggregate prison term of seven years with five years of postrelease supervision and, following a hearing, ordered him to pay $14,001.75 in restitution. Defendant now appeals.

Defendant's primary contention on appeal is that the burglary convictions are against the weight of the evidence, in that the People failed to establish that he ever entered the victim's dwelling or was aware that items of property that he helped load and sell as scrap had been taken from inside the victim's dwelling. As relevant here, to support a conviction for burglary in the second degree, the People were required to prove that defendant "knowingly enter[ed] or remain[ed] unlawfully in a building with intent to commit a crime therein" and that "the building [was] a dwelling" ( Penal Law § 140.25[2] ). The People were not required to prove that defendant had the intent to commit a particular offense upon entering the dwelling (see People v. Womack, 143 A.D.3d 1171, 1171, 41 N.Y.S.3d 302 [2016], lv. denied 28 N.Y.3d 1151, 52 N.Y.S.3d 303, 74 N.E.3d 688 [2017] ; People v. Briggs, 129 A.D.3d 1201, 1203, 13 N.Y.S.3d 255 [2015], lv. denied 26 N.Y.3d 1038, 22 N.Y.S.3d 167, 43 N.E.3d 377 [2015] ). Further, a dwelling, defined as "a building which is usually occupied by a person lodging therein at night" ( Penal Law § 140.00[3] ), "does not lose its character as such merely because its occupant is temporarily absent" ( People v. Ferguson, 285 A.D.2d 838, 839, 727 N.Y.S.2d 790 [2001] [internal quotation marks and citation omitted], lv. denied 97 N.Y.2d 641, 735 N.Y.S.2d 497, 761 N.E.2d 2 [2001] ; accord People v. DeFreitas, 116 A.D.3d 1078, 1083, 984 N.Y.S.2d 423 [2014], lv. denied 24 N.Y.3d 960, 996 N.Y.S.2d 219, 20 N.E.3d 999 [2014] ).²

Keith Dodge (hereinafter Dodge), the victim's son, testified that he and the victim sold farm equipment, machinery and component parts from the subject property, that he worked on and repaired the machinery and components and that he was generally familiar with their inventory and where the items were stored on the property. Due to health problems, the victim had been staying temporarily at Dodge's nearby home and Dodge had been regularly checking in on and maintaining the victim's property. Dodge testified that the property contained farm equipment and machinery, tractors, balers, rakes and corn pickers, and other machinery and parts that were kept outside for potential buyers to view. Other component parts were stored inside the farmhouse and its attached garage to protect them from the elements and from thieves, including PTO shafts, motors, generators, starters, belt pulleys and radiators. When he visited the property on or about June 6, 2014, Dodge discovered that the tall grass leading to the garage and house was matted down and burned from a vehicle driving on it, and that pieces of farm machinery and parts that had been stored inside were missing or had been thrown outside through a window's missing pane. Inside the garage, an area of the floor was bare where once farm equipment had been stored. As he left, Dodge found a receipt from Weitsman Shredding LLC, a scrap yard, indicating that defendant had turned in about 700 pounds of electric motors and 80 pounds of brass radiators. Dodge immediately visited a nearby scrap yard where he recognized and identified farm equipment, including starters, generators, motors and radiators that had been taken from inside the victim's house and garage. Dodge then went to Weitsman's scrap yard and identified more of their equipment and machinery, including PTO shafts, motors and starters. Dodge explained that he was able to identify many of the stolen items as having been stored inside the house based upon their condition, in that they had not rusted, had no water damage and had not deteriorated, and based upon his familiarity with their inventory and from recent visits to the property.

Starace testified that defendant, a friend, got him involved in stealing scrap metal and drove him to the victim's property, where they initially took items from outside. After defendant told him that the inside of the house was a "gold mine," they started entering the farmhouse and garage—sometimes with Payne—and took motors, radiators and other metal parts that they later sold as scrap metal. Starace explained that, ordinarily, he went inside and threw items out of the broken window, and that defendant and Payne would load them on a backed-up vehicle and, later, turn them in for cash at the scrap yards. Although he was unsure of exact dates, he testified that they followed this pattern for about one week in early June 2014, and was clear that defendant and Payne sometimes also went inside the farmhouse to take items to be sold.

Three owners or managers of nearby scrap yards testified that, during the relevant time period, Payne, a known customer, brought in unusually large quantities of scrap metal, radiators, motors and machinery, some of which was later identified as the victim's property. Payne was usually accompanied by two other men during these transactions. The manager of Weitsman's scrap yard identified defendant, with whom he was familiar, as present at the yard "numerous times" during these transactions. The scrap yard witnesses testified that receipts were produced for every transaction and copies of driver's licenses were made to identify who was selling items brought to the yards, and Weitsman's manager testified that three transaction receipts were issued to defendant for metal materials in the first week of June 2014. Defendant testified, admitting that he and the codefendants had taken metal components from the outside areas of the victim's property on several occasions, but claimed that he had never entered the victim's home or garage. Defendant also asserted that he had not discussed going inside the victim's house with the codefendants, and that he had never witnessed their entry.

Even if a different verdict would have been reasonable, upon weighing the relative probative force of the conflicting testimony and the weight of the conflicting inferences to be drawn therefrom, we find that the People proved all of the elements of burglary in the second degree beyond a reasonable doubt and that the verdict on these counts was not against the weight of the credible evidence (see People v. Romero, 7 N.Y.3d 633, 643, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] ; People v. Harden, 134 A.D.3d 1160, 1160, 21 N.Y.S.3d 730 [2015], lv. denied 27 N.Y.3d 1133, 39 N.Y.S.3d 114, 61 N.E.3d 513 [2016] ). While defendant denied ever entering the dwelling, his account was not particularly compelling or believable, and it was contradicted by the detailed testimony of numerous credible witnesses, including Dodge, Starach and the scrap yard personnel. The testimony convincingly established that defendant persuaded the others to steal from inside the home, which he admitted he may...