People v. Phoenix

• Decision Date: 13 March 2014
• Citation: 981 N.Y.S.2d 851,2014 N.Y. Slip Op. 01639,115 A.D.3d 1058
• Parties: The PEOPLE of the State of New York, Respondent, v. Carlton PHOENIX, Appellant.
• Court: New York Supreme Court — Appellate Division

115 A.D.3d 1058
981 N.Y.S.2d 851
2014 N.Y. Slip Op. 01639

The PEOPLE of the State of New York, Respondent,
v.
Carlton PHOENIX, Appellant.

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

March 13, 2014.

[981 N.Y.S.2d 853]

Carolyn B. George, Albany, for appellant.

P. David Soares, District Attorney, Albany (Christopher J. Torelli of counsel), for respondent.

Before: LAHTINEN, J.P., STEIN, McCARTHY and EGAN JR., JJ.

STEIN, J.

Appeal from a judgment of the Supreme Court (Lamont, J.), rendered June 8, 2012 in Albany County, upon a verdict convicting defendant of the crimes of grand larceny in the third degree and criminal contempt in the second degree (two counts).

In April 2011, defendant agreed to purchase certain real property from the victim for approximately $367,000. Defendant informed the victim that he had funding through a Veterans Administration (hereinafter VA) program to finance the purchase. Over the next four months, the victim loaned defendant and defendant's girlfriend, Joele Roberts, in excess of $6,000 in the form of cash, checks and cigarettes, all of which—according to the victim—defendant promised to repay at the closing of the real estate transaction. In August 2011, the victim became suspicious about these loans, particularly in view of the lack of progress with the closing, and filed a police report. Defendant was subsequently arrested and brought to the police department, where he was questioned by Detective Robert Wise and gave a statement. Thereafter, an order of protection was issued against defendant that prohibited him from, among other things, communicating with the victim. While that order was in effect, defendant called the victim two times.

Defendant was charged by indictment with one count of grand larceny in the third degree and two counts of criminal contempt in the second degree. His subsequent motion to suppress his statement to the police was denied after a Huntley hearing. Following a jury trial, defendant was found guilty as charged and was thereafter sentenced as a second felony offender to an aggregate prison term of 3 1/2 to 7 years. He was also ordered to pay $6,500 in restitution, plus interest. Defendant now appeals and we affirm.

We reject defendant's claim that his statement to the police should have been suppressed because he invoked his right to counsel during his custodial interrogation. It is well settled that, under the

[981 N.Y.S.2d 854]

N.Y. Constitution, the right to counsel indelibly attaches when an accusatory instrument is filed or an individual in custody has retained an attorney in the matter under investigation or requests the assistance of an attorney ( see People v. Lopez, 16 N.Y.3d 375, 380, 923 N.Y.S.2d 377, 947 N.E.2d 1155 [2011];People v. Grice, 100 N.Y.2d 318, 321, 763 N.Y.S.2d 227, 794 N.E.2d 9 [2003];People v. Ramos, 99 N.Y.2d 27, 32–33, 750 N.Y.S.2d 821, 780 N.E.2d 506 [2002];People v. West, 81 N.Y.2d 370, 373–374, 599 N.Y.S.2d 484, 615 N.E.2d 968 [1993];People v. Dashnaw, 85 A.D.3d 1389, 1390–1391, 925 N.Y.S.2d 262 [2011],lv. denied17 N.Y.3d 815, 929 N.Y.S.2d 803, 954 N.E.2d 94 [2011] ). However, where there is no “unequivocal” request for the assistance of counsel, the right to counsel does not attach ( People v. Glover, 87 N.Y.2d 838, 839, 637 N.Y.S.2d 683, 661 N.E.2d 155 [1995];see People v. Mitchell, 2 N.Y.3d 272, 276, 778 N.Y.S.2d 427, 810 N.E.2d 879 [2004];People v. Hicks, 69 N.Y.2d 969, 970, 516 N.Y.S.2d 648, 509 N.E.2d 343 [1987];People v. Engelhardt, 94 A.D.3d 1238, 1240–1241, 941 N.Y.S.2d 808 [2012],lv. denied19 N.Y.3d 960, 950 N.Y.S.2d 112, 973 N.E.2d 210 [2012];People v. Horton, 46 A.D.3d 1225, 1226, 850 N.Y.S.2d 650 [2007],lv. denied10 N.Y.3d 766, 854 N.Y.S.2d 328, 883 N.E.2d 1263 [2008] ).

Here, the People concede that defendant was in custody when he was questioned by Wise and gave his statement. It is also undisputed that, at that time, defendant had been given Miranda warnings and that an accusatory instrument had not been filed, and defendant does not contend that he had retained an attorney in the matter under investigation. Accordingly, the issue distills to whether defendant made an unequivocal request for the assistance of counsel. At the outset of the interview, defendant asked Wise if an individual named John Breeze—who defendant later explained was an attorney—could hear Wise's questions. Wise immediately stopped the questioning and, when he explained to defendant that he was concerned that defendant might have invoked his right to counsel, defendant adamantly denied having done so. Defendant repeatedly told Wise that he was not invoking his right to counsel, insisted that he “did not say [that he] want[ed] an attorney present” and indicated that he wanted to talk to Wise. Under these circumstances, and according deference to Supreme Court's credibility assessment that Wise “appeared frank, candid, and trustworthy, and his testimony had the general force and flavor of credibility” and that the video of the interrogation was authentic and reliable ( see People v. Kidd, 112 A.D.3d 994, 996, 976 N.Y.S.2d 309 [2013];People v. Kuklinski, 24 A.D.3d 1036, 1037, 805 N.Y.S.2d 729 [2005],lvs. denied7 N.Y.3d 758, 819 N.Y.S.2d 883, 853 N.E.2d 254 [2006],7 N.Y.3d 814, 822 N.Y.S.2d 489, 855 N.E.2d 805 [2006] ), we will not disturb Supreme Court's determination that defendant did not unequivocally invoke his right to have an attorney present ( see People v. Fridman, 71 N.Y.2d 845, 846, 527 N.Y.S.2d 737, 522 N.E.2d 1035 [1988];People v. Engelhardt, 94 A.D.3d at 1240–1241, 941 N.Y.S.2d 808;People v. Oxley, 64 A.D.3d 1078, 1080, 883 N.Y.S.2d 385 [2009],lv. denied13 N.Y.3d 941, 895 N.Y.S.2d 331, 922 N.E.2d 920 [2010];People v. Horton, 46 A.D.3d at 1226–1227, 850 N.Y.S.2d 650;People v. Wade, 296 A.D.2d 720, 720, 745 N.Y.S.2d 306 [2002] ). Therefore, defendant's suppression motion was properly denied.

We also reject defendant's argument that his conviction for grand larceny in the third degree was not supported by legally sufficient evidence. A person is guilty of that crime when he or she, “with intent to deprive another of property or to

[981 N.Y.S.2d 855]

appropriate the same to himself [or herself] or to a third person, ... wrongfully takes, obtains or withholds such property from an owner” and the value of the property exceeds $3,000 (Penal Law § 155.05[1]; seePenal Law § 155.35[1]; People v. Brown, 107 A.D.3d 1145, 1146, 967 N.Y.S.2d 206 [2013],lv. denied22 N.Y.3d 1039, 981 N.Y.S.2d 373, 4 N.E.3d 385 [2013] ). Further, a larceny can occur by false pretenses when a defendant (1) obtains title or possession of money or personal property of another, (2) by means of an intentional false statement, (3) concerning a material fact, and (4) upon which the victim relied in parting with the property ( seePenal Law § 155.05[2][d]; People v. Drake, 61 N.Y.2d 359, 362, 474 N.Y.S.2d 276, 462 N.E.2d 376 [1984];People v. Trimmer, 30 A.D.3d 820, 822, 817 N.Y.S.2d 727 [2006] ).

Here, defendant's legal sufficiency argument primarily focuses on the element of intent. “Larcenous intent ... ‘is rarely susceptible of proof by direct evidence, and must usually be inferred from the circumstances surrounding the defendant's actions' ” ( People v. Brown, 107 A.D.3d at 1146, 967 N.Y.S.2d 206, quoting People v. Russell, 41 A.D.3d 1094, 1096, 838 N.Y.S.2d 710 [2007],lv. denied10 N.Y.3d 964, 863 N.Y.S.2d 148, 893 N.E.2d 454 [2008] ). At trial, the People proffered evidence that defendant convinced the victim to make a series of loans to him and Roberts, totaling more than $6,000 in cash, checks and cigarettes. The victim testified that defendant told him that defendant had funding for the real estate transaction from a VA program and that he loaned defendant money after they began negotiating that transaction, based upon defendant's assurances that he would repay the loans when the transaction closed.¹ Between April and August 2011, the victim gave three checks to defendant and/or Roberts, which totaled $3,028. The record also includes a written agreement signed by defendant in August 2011, setting forth the total amount owed by defendant to the victim.²

The victim also testified that he received multiple telephone calls and facsimiles from purported employees of the VA—including an individual who identified himself as Richard Wooderson—falsely indicating that defendant had VA funding for the real estate transaction. One facsimile—with a cover sheet on Department of Labor letterhead—which was purportedly written by Wooderson, indicated that it was sent from the “Dept of Vet...