People v. Morrison

• Decision Date: 09 April 2015
• Docket Number: 106081.
• Citation: 127 A.D.3d 1341,2015 N.Y. Slip Op. 02997,6 N.Y.S.3d 781
• Parties: The PEOPLE of the State of New York, Respondent, v. James MORRISON, Appellant.
• Court: New York Supreme Court — Appellate Division

127 A.D.3d 1341
6 N.Y.S.3d 781
2015 N.Y. Slip Op. 02997

The PEOPLE of the State of New York, Respondent
v.
James MORRISON, Appellant.

106081.

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

April 9, 2015.

6 N.Y.S.3d 782

Carolyn B. George, Albany, for appellant, and appellant pro se.

P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.

Before: McCARTHY, J.P., EGAN JR., DEVINE and CLARK, JJ.

Opinion

EGAN JR., J.

127 A.D.3d 1341

Appeal from a judgment of the Supreme Court (Breslin, J.), rendered April 9, 2013 in Albany County, upon a verdict convicting defendant of the crime of burglary in the third degree.

On December 12, 2011, detective Mark Sauter responded to

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a call of a burglary in progress at 20 Judson Street in the City of Albany. When Sauter pulled up to that address, he observed a blue Ford F–150 pickup truck backed up to the front steps of the building. As Sauter began to walk towards the building, two men—later identified as defendant and Lawrence Carden—emerged from the front door carrying a large radiator. As a result of this incident, defendant was charged in a single-count indictment with burglary in the third degree. At the conclusion of the trial that followed, at which Sauter, Carden and the building's owner, Douglas Pologa, appeared and testified, defendant was found guilty as charged and thereafter was sentenced as a second felony offender to a prison term of 3 ½ to 7 years. Defendant now appeals.

We affirm. “A person is guilty of burglary in the third degree when he [or she] knowingly enters or remains unlawfully in a building with intent to commit a crime therein” (Penal Law § 140.20 ). In this regard, “[a] person ‘enters or remains unlawfully’ in or upon premises when he [or she] is not licensed or privileged to do so” (Penal Law § 140.00[5] ). The requisite intent, in turn, “may be inferred from the circumstances of the [defendant's] unlawful entry, unexplained presence on the premises, and actions and statements when confronted by police or the property owner” (People v. Sabines, 121 A.D.3d 1409, 1410, 995 N.Y.S.2d 377 [2014] [internal quotation marks and citation omitted]; see People v. Peterson, 118 A.D.3d 1151, 1152, 988 N.Y.S.2d 271 [2014], lvs. denied 24 N.Y.3d 1087, 1087, 1 N.Y.S.3d 14, 14, 25 N.E.3d 351, 351 [2014] ; People v. Barringer, 54 A.D.3d 442, 443, 862 N.Y.S.2d 214 [2008], lvs. denied

6 N.Y.S.3d 783

11 N.Y.3d 830, 836, 868 N.Y.S.2d 604, 610, 897 N.E.2d 1088, 1094 [2008] ).

Here, Carden testified that, beginning in early December 2011, defendant—who Carden generally knew from the neighborhood—repeatedly asked Carden “to go with him to this house on Judson [Street] and take some radiators out of there.” Although Carden initially refused, he eventually acquiesced to defendant's requests and, on December 12, 2011, drove to the Judson Street address with defendant. According to Carden, defendant indicated that he had permission to remove the radiators from the building, that they would be taking the radiators to a local charity and that he would “split whatever [they] got from the place” with Carden.¹ Once the two arrived at the Judson Street location, defendant instructed Carden to back his truck up to the steps of the building; as Carden was doing so, defendant went around to the back of the

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premises and thereafter let Carden into the building by way of the front door. Carden was in the process of helping defendant remove “about three radiators” from the building and load them into the back of Carden's truck when Sauter arrived.

Sauter, in turn, testified that, after arriving at the scene, he observed defendant and Carden coming out the front door carrying a radiator in their hands. When Sauter instructed the pair to put the radiator down and come towards him, Carden complied; defendant remained where he was, “making head movements” and “looking back and forth” at Sauter, the stairs and down the street, before taking “a couple steps toward the top of the staircase.” Photographs taken at the scene and admitted into evidence at trial depict, among other things, radiators in the bed of Carden's pickup truck. Finally, Pologa testified that the property—including the doors to the building and the gate to the alleyway along the side of the house—was always locked, that he did not know defendant (or Carden for that matter) and that he did not give defendant (or anyone from the named charity) permission to enter the property and remove radiators from within. In our view, the foregoing testimony, together with the reasonable inferences that may be drawn therefrom (see People v. Sturdevant, 74 A.D.3d 1491, 1492–1493, 904 N.Y.S.2d 777 [2010], lv. denied 15 N.Y.3d 810, 908 N.Y.S.2d 170, 934 N.E.2d 904 [2010] ), constitutes legally sufficient evidence to support defendant's conviction of burglary in the third degree. Further, “upon independent consideration of the evidence in a neutral light” (People v. Woodrow, 91 A.D.3d 1188, 1190, 936 N.Y.S.2d 778 [2012], lv. denied 18 N.Y.3d 999, 945 N.Y.S.2d 654, 968 N.E.2d 1010 [2012] ), we are satisfied that the verdict is in accord with the weight of the evidence.

Defendant next contends that he was deprived of a fair trial by virtue of certain remarks made by the prosecutor during closing argument. To the extent that defendant's objections to the specific comments at issue have been preserved for our review, we find them to be lacking in merit. When the prosecutor suggested that defendant, in support of his theory that Carden was the “criminal mastermind” behind the burglary, was “mak[ing] stuff up,” Supreme Court (Lamont, J.)—characterizing that suggestion as “[b]urden shifting”—sustained defense counsel's objection, promptly instructed the jury to disregard the prosecutor's comment and,

6 N.Y.S.3d 784

during the course of its final charge to the jury, reiterated that defendant was “not required to prove that he [was] not guilty,” thereby “ameliorat[ing] any prejudice to defendant” (People v. VanVorst, 118 A.D.3d 1035, 1037, 986 N.Y.S.2d 891 [2014] ). As to the remaining statements, we find that the prosecutor's remarks either were fair comment

127 A.D.3d 1344

upon the evidence or, to the extent that they were improper, did not reflect “a flagrant and pervasive pattern of prosecutorial misconduct so as to deprive [defendant] of a...