People v. Lukosavich

• Citation: 135 N.Y.S.3d 685,189 A.D.3d 1895
• Decision Date: 24 December 2020
• Docket Number: 110170
• Parties: The PEOPLE of the State of New York, Respondent, v. Matthew A. LUKOSAVICH, Appellant.
• Court: New York Supreme Court Appellate Division

189 A.D.3d 1895
135 N.Y.S.3d 685

The PEOPLE of the State of New York, Respondent,
v.
Matthew A. LUKOSAVICH, Appellant.

110170

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

Calendar Date: November 19, 2020
Decided and Entered: December 24, 2020

135 N.Y.S.3d 687

Keith D. Dayton, Public Defender, Cortland, for appellant.

Michael D. Ferrarese, Special Prosecutor, Norwich (Karen Fisher McGee, New York Prosecutors Training Institute, Inc., Albany, of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Aarons and Pritzker, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

Appeal from a judgment of the County of Cortland County (Campbell, J.), rendered January 18, 2018, upon a verdict convicting defendant of the crime of grand larceny in the fourth degree.

Defendant was charged by indictment with one count each of burglary in the second degree, grand larceny in the fourth degree and conspiracy in the fourth degree stemming from an incident in March 2016 wherein the victim's apartment was broken into and several valuable items were stolen. After a jury trial, defendant was convicted of grand larceny in the fourth degree and acquitted of the other charges. After County Court denied defendant's motion to set aside the verdict, defendant was sentenced to a prison term of 1 to 4 years. Defendant appeals.

Defendant challenges the verdict as legally insufficient and against the weight of the evidence. "When considering a challenge to the legal sufficiency of the evidence, we view the evidence in the light most favorable to the People and evaluate whether there is a valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury 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" (

135 N.Y.S.3d 688

People v. McCabe, 182 A.D.3d 772, 772–773, 122 N.Y.S.3d 757 [2020] [internal quotation marks and citations omitted]; see People v. Glover, 160 A.D.3d 1203, 1204, 74 N.Y.S.3d 822 [2018] ). "In contrast, when undertaking a weight of the evidence review, we must first determine whether, based on all the credible evidence, a different finding would not have been unreasonable and then, if not, weigh the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence" ( People v. Dickinson, 182 A.D.3d 783, 783–784, 122 N.Y.S.3d 797 [2020] [internal quotation marks, brackets and citations omitted], lv denied 35 N.Y.3d 1065, 129 N.Y.S.3d 408, 152 N.E.3d 1210 [2020] ; see People v. Creech, 165 A.D.3d 1491, 1492, 87 N.Y.S.3d 384 [2018] ). "When conducting this review, we consider the evidence in a neutral light and defer to the jury's credibility assessments" ( People v. Kelsey, 174 A.D.3d 962, 963, 107 N.Y.S.3d 150 [2019] [internal quotation marks and citations omitted], lv denied 34 N.Y.3d 982, 113 N.Y.S.3d 671, 137 N.E.3d 41 [2019] ; see People v. Gill, 168 A.D.3d 1140, 1140–1141, 90 N.Y.S.3d 392 [2019] ).

Grand larceny in the fourth degree requires the People to prove that, with intent to deprive another of property or to appropriate the same to himself[, herself] or to a third person, the defendant steals property having a value of more than $1,000 (see Penal Law §§ 155.05[1] ; 155.30[1] ). As relevant here, "[a] defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense" ( CPL 60.22[1] ; see People v. Chapman, 182 A.D.3d 862, 863, 123 N.Y.S.3d 236 [2020] ). "The corroborative evidence need only tend to connect the defendant to the crime; it need not establish all the elements of the offense" ( People v. Heimroth, 181 A.D.3d 967, 968, 119 N.Y.S.3d 627 [2020] [internal quotation marks and citations omitted], lv denied 35 N.Y.3d 1027, 126 N.Y.S.3d 37, 149 N.E.3d 875 [2020] ; see People v. Steinberg, 79 N.Y.2d 673, 683, 584 N.Y.S.2d 770, 595 N.E.2d 845 [1992] ).

The victim testified that, on the day of the burglary, she lived with her then-boyfriend in an apartment in the City of Cortland, Cortland County. The victim left her apartment at approximately 12:00 p.m. and did not return until four hours later, when she found that the door to her apartment was broken, her apartment had been ransacked and there were several missing items. She testified that she compiled a list of missing items, which included two laptops, three tablets, jewelry and a safe. The safe contained, among other things, $2,500 in cash and the adoption records for her two cats from the Schuyler County Humane Society. The victim also testified to missing a silver makeup bag. The victim contacted the police and, while officers were still at her apartment, she noticed that two of her acquaintances, Joseph Bernhardt and Kurtis Montgomery, had deleted her on social media, which made her suspicious. Later that day, the victim tracked one of the stolen tablets to a town where she knew Bernhardt and Montgomery lived.

A patrol officer and a sergeant with the City of Cortland Police Department both testified regarding their involvement in the burglary investigation. The patrol officer testified that, upon his arrival to the victim's apartment, there appeared to be a forced entry and the apartment was "completely trashed." The sergeant, who also responded to the victim's apartment, testified that he took photographs and interviewed the victim and the victim's boyfriend. The sergeant's investigation led him to interview Bernhardt and Montgomery, who both confessed to being involved in the burglary along with defendant.

135 N.Y.S.3d 689

After Montgomery informed the sergeant that the proceeds of the burglary were located at defendant's residence, the sergeant obtained a search warrant and conducted a search of the home where defendant lived with his father and his grandmother. The sergeant testified that, while conducting his search at and around the residence, he located a safe in a wooded area up a hill near the house and that there was ash in the safe as well as a card related to cat adoption. The patrol officer, who assisted in the search, testified that he found a small silver bag in the loft of the garage and that the safe appeared to have been forced open and damaged and that inside was a document from the Schuyler County Humane Society.

Defendant's accomplices, Bernhardt and Montgomery, both testified at trial. Their testimony established that, on the morning of the burglary, Bernhardt and Montgomery discussed stealing drugs from the victim's boyfriend because they wanted drugs but did not have any money. The pair decided to contact defendant because stealing was "his thing,"¹ and they picked him up sometime between 12:00 p.m. and 1:00 p.m. at a supermarket in the City of Ithaca, Tompkins County. Bernhardt testified that all three men formed a plan in which Bernhardt was to be the driver and Montgomery and defendant would enter the apartment to get the drugs. Montgomery testified that defendant forced open the door and began to ransack the apartment. Montgomery testified that items such as credit cards, laptops and a safe were taken. When Bernhardt went to pick Montgomery and defendant up, he observed the two men carrying a safe and a few items wrapped in pillowcases, including drug paraphernalia and electronics. Bernhardt drove himself, Montgomery and defendant back to Bernhardt's house and transferred the items from his car to Montgomery's car. Montgomery testified that he then drove defendant to his residence and left almost all of the stolen items at defendant's house, mostly in his bedroom. He testified that, to his belief, defendant sold all of the property. Montgomery also testified that the safe was not removed from his car until the next day, when he and defendant carried it behind defendant's residence...