People v. Mongen

• Decision Date: 03 May 1990
• Citation: 157 A.D.2d 82,555 N.Y.S.2d 260
• Parties: The PEOPLE of the State of New York, Respondent, v. Gary MONGEN, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 260

555 N.Y.S.2d 260

157 A.D.2d 82

The PEOPLE of the State of New York, Respondent, v. Gary MONGEN, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

May 3, 1990.

Diane Pazar, of counsel (Philip L. Weinstein, New York City, attorney), for defendant-appellant.

Alexei Schacht, of counsel (Ellen Polshek on the brief; Robert M. Morgenthau, Dist. Atty., New York City, attorney), for respondent.

Before SULLIVAN, J.P., and ROSENBERGER, ASCH, ELLERIN and SMITH, JJ.

SULLIVAN, Justice.

On November 2, 1987, at about 11:00 a.m., as Effie Graham, a housekeeper at New York Hospital working on the 7th floor of the M building (M-7), an area not open to the general public, was leaving the utility room heading towards the medication room, she heard a "loud sound" like the "crushing of a paper bag". As she turned the corner, a man, later identified as Raymond Wolfe, whom she had never seen before, came out of the medication room, which had a sign on the door that read, "Staff Only, Medication Room". He was "ruffling" a big brown paper bag, "rolling it down", and ran past her, "almost knock[ing] her down". He was about 5'7" or 5'8" tall, weighed about 140 to 150 pounds, had straight hair "slicked back" with a "duck tail", and was wearing a white, doctor's laboratory coat, as well as gray acid-washed jeans and "very dirty" sneakers, which, as Graham knew, violated the hospital's dress code for staff members. After shouting to a clerk on the floor to "call security," Graham ran after Wolfe, who dashed to the stairway exit, running down the stairs at such "a fast rate" that the landing was vibrating.

Meanwhile, at about the same time, Eric Mazzella, a hospital security officer, who had been standing in front of the security office, received a radio report of a "suspicious male up on M-7", as well as a description of the person Graham had seen. Mazzella immediately proceeded to the entrance to the M building, where he saw two men on their way out of the building together. One of them, defendant, was holding a light blue knapsack. Wolfe, about 5'7"" and 150 pounds, had straight black hair combed back and wore gray jeans.

As Mazzella, who was in uniform, approached the two men, they "started to split up". Mazzella stopped them and asked the "nature of their business." Defendant said he was "on the second floor going to the bathroom". Since neither defendant nor Wolfe was able to produce hospital identification, and defendant had no permission or authority to be on the second floor of the M building, which contains the dialysis unit and is not open to the public, Mazzella decided to detain them. After recovering a white, doctor's laboratory coat, one large box of syringes, and two smaller boxes of needles from defendant's knapsack, Mazzella asked defendant where he "got" the property; defendant answered, "on the second floor".

At trial, Ms. Graham identified the laboratory coat taken from defendant's knapsack as belonging to New York Hospital. She also recognized the boxes of needles and syringes found in the knapsack as belonging to the seventh floor medication room because the boxes were marked "M-7" and the instruments were "the type" stored there. Defendant did not present any evidence in his defense.

On appeal, defendant argues, and the dissent agrees, that the trial court erred in declining to charge trespass as a lesser included offense of burglary. Specifically, defendant claims that there was a reasonable view of the evidence on which the jury could find that although he and Wolfe "exited the hospital at the same time they were not together," that he "knowingly and unlawfully entered a restricted area of the hospital for a non-criminal purpose, using the bathroom, and that he lacked the criminal intent to commit a crime." Citing the absence of any evidence that he and Wolfe "arrived together, were ever seen together in the hospital at any time, or ever spoke to one another", defendant argues that the "possibility" therefore existed that he "found a discarded knapsack on the stairway or in the second floor bathroom". Careful scrutiny of the record, however, fails to reveal a shred of evidence to support such an unrealistic theory of the case.

At the outset, we emphasize that the court is not required to "charge down in every case in which any distillate of the total proof, however artificial or irrational, would support a conviction of the lesser but not the greater crime * * * "; the test is not whether there is "any view" of the evidence, but whether there is a reasonable view of the evidence. (People v. Scarborough, 49 N.Y.2d 364, 373, 426 N.Y.S.2d 224, 402 N.E.2d 1127.) In that regard, the record does not even remotely suggest that defendant and Wolfe were not together leaving the hospital, and it would be "sheer speculation" for the jury so to conclude. (See, id.) In fact, the record reveals that, in response to the approach of the uniformed security officer, Mazzella, defendant and Wolfe "split up". This is compelling evidence of defendant and Wolfe's own consciousness of guilt and the jury could so find. Such conduct is, of course, entirely inconsistent with defendant's alleged innocent possession of the hypodermic needles and syringes and the laboratory coat. Indeed, the jury could reasonably conclude that since it was Wolfe who had been spotted earlier, he gave the laboratory coat and the proceeds of the crime to his accomplice, defendant, so that if Wolfe were apprehended he would not be in possession of any incriminating evidence.

To accept defendant's suggested view of the case, the jury would have to speculate that Wolfe, knowing that he had been observed by the housekeeper, instead of simply dropping the paper bag on the stairs, would have taken the time to remove his laboratory coat and put it in a knapsack that was hidden on his body or somewhere else, place the boxes of hypodermic instruments in the same knapsack, and then inexplicably, leave the knapsack behind in open view. Of course, the jury would then have to speculate further that, somehow, defendant picked up the knapsack and fortuitously walked out of the hospital at the exact moment as Wolfe. Such a far-fetched view of the evidence makes no sense.

Moreover, there is no evidentiary basis for defendant's hypothesis that he found the knapsack and its contents. His statement was that he "got" the property on the second floor. On this point, Mazzella was quite specific, rejecting any suggestion that defendant told him that he found the knapsack on the second floor. Nor is there any evidence that defendant did not know what was in the knapsack, or that the knapsack did not belong to him, or that he did not know Wolfe. Thus, the only reasonable view of the evidence is that defendant and Wolfe were acting in concert in a scheme to steal hypodermic instruments from the hospital, that Wolfe raced down the stairs to meet his accomplice, removed his disguise and transferred it and the stolen goods to defendant's knapsack, leaving Wolfe unencumbered by any incriminating evidence in the event he were identified. Their only mistake, as the prosecutor rightly pointed out in summation, was that they came out of the building together.

Nor did defendant "impugn by cross-examination the evidence offered by the People to establish circumstantially the element of his intent to commit a crime" in the hospital. (People v. Woolard, 124 A.D.2d 763, 764, 508 N.Y.S.2d 259, app. den., 69 N.Y.2d 751, 512 N.Y.S.2d 1056, 505 N.E.2d 254.) Thus, this record provides no evidentiary basis for a finding that defendant merely trespassed in the dialysis unit for the purpose of using the bathroom, found a knapsack containing stolen hospital supplies and a laboratory coat, and just happened to leave the hospital with the knapsack in the company of the man who had worn a laboratory coat and taken hypodermic instruments in a paper bag from the seventh floor medication room.

The dissent argues that defendant's statement to the security officer is synonymous with his contention that he entered the hospital for an innocent purpose. While defendant's statement may be consistent with his contention that he entered the hospital for an innocent purpose, i.e., to use the bathroom, it is not, however, synonymous with such a contention. (Id.) Furthermore, contrary to the dissent's argument, defendant never said that he "went to the second floor ... to use the bathroom." According to the security officer, defendant stated that "he was on the second floor going to the bathroom" and that he "got" the property there. Nor does our determination rest, as the dissent suggests, on an assessment of "the credibility of both parties' contentions." It rests, rather, on the conclusion, reached after viewing the evidence in the light most favorable to the defendant, that under no reasonable view thereof was defendant guilty of only the lesser included offense. (See, People v. Woolard, supra 124 A.D.2d at 764, 508 N.Y.S.2d 259.)

Defendant contends that the trial court "severely prejudiced" him by failing to charge the lesser included offense because the court denied counsel the opportunity to concede on summation that defendant trespassed and to argue that although he entered a restricted area illegally he did so for "an innocent purpose and not intending to commit any crime". Thus, defendant argues, the court put him in "the difficult position" of arguing that the jury should acquit him even though he possessed the stolen property because the "appropriate charges were not before the jury." Aside from its patent lack of merit, this argument is irrelevant. Irrespective of whether the court submitted the lesser included offense, defendant was free to argue that the People failed to prove all the elements of the crime of burglary and that even if the jury believed that defendant trespassed he lacked the intent to commit a crime in the hospital. In fact, that is...