People v. Lamb

• Decision Date: 22 December 2022
• Docket Number: 113087
• Citation: 211 A.D.3d 1345,180 N.Y.S.3d 391
• Parties: The PEOPLE of the State of New York, Respondent, v. John LAMB, Appellant.
• Court: New York Supreme Court — Appellate Division

211 A.D.3d 1345

180 N.Y.S.3d 391

The PEOPLE of the State of New York, Respondent,

v.John LAMB, Appellant.

113087

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

Calendar Date: November 15, 2022

Decided and Entered: December 22, 2022

Cambareri & Brenneck, Syracuse (Melissa K. Swartz of counsel), for appellant.

Gary M. Pasqua, District Attorney, Canton (Sasha Mascarenhas of counsel), for respondent.

Before: Aarons, J.P., Pritzker, Reynolds Fitzgerald, Ceresia and Fisher, JJ.

MEMORANDUM AND ORDER

Aarons, J.P. Appeal from a judgment of the County Court of St. Lawrence County(Gregory P. Storie, J.), rendered September 14, 2021, upon a verdict convicting defendant of the crime of unlawful surveillance in the second degree.

Defendant's neighbor discovered on her property a camera that was focused on the bedroom window of her daughter (hereinafter the victim) and was recording the victim.In connection with this, defendant was charged by indictment with unlawful surveillance in the second degree.Following a jury trial, defendant was convicted as charged.County Court thereafter sentenced defendant to a term of imprisonment.Defendant appeals.

As relevant here, the People were obligated to prove that defendant, "[f]or no legitimate purpose, ... intentionally ... install[ed] ... an imaging device to surreptitiously view, broadcast or record a person in a bedroom ... without such person's knowledge or consent"( Penal Law § 250.45[3][a] ).In challenging the verdict as not being supported by legally sufficient evidence, defendant argues that the proof failed to demonstrate that he acted surreptitiously.That said, in applying its common meaning, the Court of Appeals has held that surreptitiously is "something done by stealth or clandestinely"( People v. Schreier,22 N.Y.3d 494, 498, 982 N.Y.S.2d 822, 5 N.E.3d 985[2014][internal quotation marks and citation omitted]).

The trial testimony reveals that, one night, the neighbor, who lived across the street from defendant, left her house and did not notice anything on her property.When the neighbor returned approximately one hour later, she noticed something shiny on her lawn as she pulled her car onto the driveway and found a camera situated on top of a black tripod.The neighbor explained that the camera was found by a large pine tree and was approximately 50 feet from her house.The neighbor testified that, when she discovered the camera, it was very dark out, the camera was zoomed in on the victim's bedroom and the camera was actively recording the victim.A trooper who responded to the scene stated that the camera was located slightly forward from the tree's lower hanging branches.The trooper also stated that the neighbor's house was not by a main road and that there were no streetlights.Viewing this evidence in the light most favorable to the People, as well as the photographic and video evidence, legally sufficient evidence supports the surreptitious element of unlawful surveillance in the second degree (seePeople v. Schreier,22 N.Y.3d at 498–499, 982 N.Y.S.2d 822, 5 N.E.3d 985 ).

Defendant also contends that the verdict is against the weight of the evidence.As part of his defense, defendant offered testimonial proof that the camera was stolen from him and that the tripod found on the lawn was not his.The jury could have credited defendant's proof and, therefore, an acquittal would not have been unreasonable (seePeople v. File,201 A.D.3d 1036, 1038, 159 N.Y.S.3d 259[3d Dept.2022], lv denied38 N.Y.3d 950, 165 N.Y.S.3d 471, 185 N.E.3d 992[2022] ).Although defendant maintains that the People's witnesses were less credible that his witnesses, assessing the credibility of each witness is a matter for the jury's resolution, to which deference is given (seePeople v. Harris,206 A.D.3d 1063, 1064, 168 N.Y.S.3d 592[3d Dept.2022] ).Viewing the evidence in a neutral light and weighing the relative probative force of conflicting testimony and the inferences that may be drawn therefrom, the verdict is not against the weight of the evidence (seePeople v. Pacienza,91 A.D.3d 672, 673, 935 N.Y.S.2d 896[2d Dept.2012], lv denied18 N.Y.3d 961, 944 N.Y.S.2d 489, 967 N.E.2d 714[2012];see generallyPeople v. Bleakley,69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672[1987] ).

Regarding defendant's motion for a mistrial, defendant sought such relief after the trooper testified that defendant"asked for a lawyer."In responding to defendant's motion for mistrial, the People did not dispute the prejudicial impact of the trooper's remark but commented that it came during defense counsel's cross-examination of the trooper.County Court noted this and also found that there was no indication of malfeasance on the part of the People and that the unsolicited remark was not repetitive.In view of the foregoing, the court providently exercised its discretion in denying the motion (seePeople v. Carmel,298 A.D.2d 928, 929, 748 N.Y.S.2d 89[4th Dept.2002], lv denied99 N.Y.2d 556, 754 N.Y.S.2d 208, 784 N.E.2d 81[2002];People v. Shaffer,223 A.D.2d 755, 755–756, 636 N.Y.S.2d 162[3d Dept.1996], lv denied87 N.Y.2d 1025, 644 N.Y.S.2d 159, 666 N.E.2d 1073[1996] ) and ameliorated any prejudice with a curative instruction and a direction to the jury to disregard the statement (seePeople v. McLean,243 A.D.2d 756, 756–757, 662 N.Y.S.2d 629[3d Dept.1997], lv denied91 N.Y.2d 928, 670 N.Y.S.2d 410, 693 N.E.2d 757[1998] ).

Contrary to defendant's assertion, the People did not improperly use evidence of his prearrest silence during the trooper's direct examination (seePeople v. Regan,196 A.D.3d 735, 740, 150 N.Y.S.3d 820[3d Dept.2021] ).To the extent that defendant also asserts that the People committed the same error when using defendant's grand jury testimony as part of their case-in-chief, this assertion is unpreserved in the absence of a timely objection (seePeople v. Hunt,50 A.D.3d 1246, 1248, 855 N.Y.S.2d 736[3d Dept.2008], lv denied11 N.Y.3d 789, 866 N.Y.S.2d 615, 896 N.E.2d 101[2008] ).

Defendant contends that County Court erred in denying his request for a circumstantial evidence charge.The People opposed defendant's request on the ground that such charge was not warranted because there was both direct and circumstantial evidence of defendant's guilt.It is true that the People tendered direct evidence in the form of defendant's admission that the camera was his, the pictures of him discovered on the SD card therein and the victim's testimony that consent was not given to record her.Proof by direct evidence as to one element of a crime, however, does not mean that a circumstantial evidence charge should be not given (seePeople v. Santiago,22 N.Y.3d 990, 992, 980 N.Y.S.2d 889, 3 N.E.3d 1137 n [2013] )."The charge is required where, as here, the only proof that defendant committed the crime charged was circumstantial"( id. ).

That said, the record fails to disclose any eyewitness testimony – or any other proof – identifying defendant as the perpetrator who placed the camera on the neighbor's lawn (comparePeople v. Golston,13 A.D.3d 887, 890, 787 N.Y.S.2d 185[3d Dept.2004], lv...