People v. Porter

• Decision Date: 25 June 2020
• Docket Number: 109922
• Citation: 184 A.D.3d 1014,125 N.Y.S.3d 776
• Parties: The PEOPLE of the State of New York, Respondent, v. Gerald PORTER, Appellant.
• Court: New York Supreme Court — Appellate Division

184 A.D.3d 1014

125 N.Y.S.3d 776

The PEOPLE of the State of New York, Respondent,

v.Gerald PORTER, Appellant.

109922

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

Calendar Date: May 20, 2020

Decided and Entered: June 25, 2020

Adam H. Van Buskirk, Auburn, for appellant.

Michael A. Korchak, District Attorney, Binghamton (Rita Basile of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Mulvey, Devine and Colangelo, JJ.

MEMORANDUM AND ORDER

Colangelo, J. Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.), rendered September 21, 2017, upon a verdict convicting defendant of the crimes of burglary in the second degree and criminal possession of stolen property in the fifth degree.

In November 2016, defendant was charged by indictment with burglary in the second degree and criminal possession of stolen property in the fifth degree based upon allegations that he allegedly entered the apartment of another with intent to steal property and thereafter possessed stolen property. Following a jury trial, defendant was convicted as charged and thereafter sentenced, as a second violent felony offender, to a prison term of eight years, followed by 15 years of postrelease supervision, on the burglary conviction and to a lesser concurrent prison term on the conviction of criminal possession of stolen property. Defendant appeals.

Defendant contends that his convictions were not supported by legally sufficient evidence and were against the weight of the evidence, as the People failed to prove that he had the intent to commit the crimes. Initially, as defendant's motion for a trial order of dismissal at the close of proof was "not directed at the specific argument[ ] he raises on appeal, [his] legal sufficiency claim is unpreserved" ( People v. Shackelton, 177 A.D.3d 1163, 1165, 115 N.Y.S.3d 488 [2019], lv denied 34 N.Y.3d 1162, 120 N.Y.S.3d 270, 142 N.E.3d 1172 [2020] ; see People v. Gray, 86 N.Y.2d 10, 19–20, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ; People v. Youngs, 175 A.D.3d 1604, 1606, 110 N.Y.S.3d 73 [2019] ). Nevertheless, in reviewing whether the verdict is against the weight of the evidence, this Court necessarily must ensure that the People proved each element of the crimes beyond a reasonable doubt (see People v. Vega, 170 A.D.3d 1266, 1268, 95 N.Y.S.3d 620 [2019], lv denied 33 N.Y.3d 1074, 105 N.Y.S.3d 48, 129 N.E.3d 368 [2019] ). "In conducting such a review, where an acquittal would not have been unreasonable, we view the evidence in a neutral light and, while giving deference to the jury's credibility determinations, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" ( People v. Brinkley, 174 A.D.3d 1159, 1160–1161, 106 N.Y.S.3d 210 [2019] [internal quotation marks and citations omitted], lv denied 34 N.Y.3d 979, 113 N.Y.S.3d 646, 137 N.E.3d 16 [2019] ; see People v. Shabazz, 177 A.D.3d 1170, 1171, 113 N.Y.S.3d 397 [2019] ).

As relevant here, "[a] person is guilty of burglary in the second degree when he [or she] knowingly enters or remains unlawfully in a building with intent to commit a crime therein, and when ... [t]he building is a dwelling" ( Penal Law § 140.25[2] ). With respect to criminal possession of stolen property in the fifth degree, the People are required to prove that the defendant "knowingly possesse[d] stolen property, with intent to benefit himself [or herself] or a person other than an owner thereof or to impede the recovery by an owner thereof" ( Penal Law § 165.40 ).

Daniel Flanders, a police sergeant with the City of Binghamton Police Department, testified at the trial that he and other officers responded to an apartment in the City of Binghamton, Broome County, where it was reported that Gordon Gibson passed away. Flanders observed a television, stereo and DVD player in Gibson's living room and an air conditioner in his kitchen window. They removed Gibson's wallet, exited the apartment and locked the door. Because Gibson had been a client of Catholic Charities of Broome County (hereinafter Catholic Charities),¹ and at the request of Gibson's aunt, two employees of Catholic Charities, John Wirth and Conor Johns, entered Gibson's apartment to take care of anything that needed immediate attention, and they saw the same electronic items observed by Flanders. Johns and Wirth entered the apartment with a key and locked the apartment door when they left. Three days later, Johns returned to Gibson's apartment with another Catholic Charities employee and saw that the apartment door was open, that the television and stereo were missing and that the shelves were empty. The air conditioner was damaged and was on the floor next to the kitchen window, which was also damaged. The police were called and promptly responded.

Anthony Diles, a police sergeant, testified that he went to defendant's apartment a few days after the reported burglary and informed defendant that the police had information that defendant may have removed some items from Gibson's apartment after Gibson had died. Defendant initially denied removing anything from Gibson's apartment; however, Diles observed an LG stereo that appeared to be new or the same make as the stereo that had been reported stolen and, upon obtaining defendant's permission to check the serial number on the stereo, discovered that it matched the serial number of the stereo that had been reported stolen. Defendant then showed Diles a 40–inch Samsung flat screen television that he had taken and retrieved a red plastic bucket from a closet that contained, among other things, a Funai DVD player, a cable box and a remote, all of which had been reported stolen. Diles testified that defendant admitted having taken those items to his apartment. Defendant told Diles that "he believed that after ... Gibson had died ... Gibson had no need for [the items] anymore ... and that as they were friends there would be no problem with [defendant] taking possession of those items." Diles testified that defendant also told him that "he knew that ... it was not legal for him to enter the apartment or to remove those items and that he knew it was wrong."

In a subsequent written statement made to police that was introduced into evidence at trial, defendant admitted that "[t]he door to Gibson's apartment was unlocked for about a week" after he saw Gibson's body being taken away and that "[he] went inside and took an LG stereo and speakers, a Samsung 40[-inch] flat screen TV and a red bucket with a Funai DVD player and the Time Warner cable box inside of it, [and he] took these things to [his] apartment and was using them." Defendant also admitted that he "went inside with [his friend James, who] carried the stereo speakers to [defendant's] apartment. James took some sneakers and a bunch of loose change ... and some brown work boots that he kept for himself." Defendant stated that he "didn't think there was anything wrong because [Gibson] had died and had no use for them and they were just going to waste in there ... [and] everyone knew [Gibson] was gone and his stuff was up for grabs."

Joseph Kovarik Jr., the building landlord, testified that both Gibson and defendant were tenants in the building. Soon after Gibson died, defendant asked Kovarik to let him enter Gibson's apartment to take back the television that he sold to Gibson. Sometime later, defendant asked Kovarik to write a letter stating that defendant was given permission to enter Gibson's apartment. When Kovarik refused, defendant told Kovarik that "[he] need[s] the letter because [he] might be going to jail." Sonya Hildebrandt, an employee at a local furniture and appliance store, and John Ryan, an employee with Catholic Charities' residential program who assisted Gibson in managing his finances, provided testimony establishing that the Samsung 40–inch flat screen television and the LG stereo found in defendant's apartment were purchased by Gibson at the furniture and appliance store.

Following the close of the People's proof, Melinda Hine, a friend of defendant, testified on his behalf. She testified that she knew defendant and Gibson for at least five years and that all three would frequently meet and drink. After Gibson died, Hine observed Gibson's stereo and television in defendant's apartment. She testified that defendant told her that he "was saving them." Hine testified that after Gibson's death, the door to his apartment remained open for two weeks, which would corroborate defendant's testimony that Gibson's door was open when he entered.

Defendant testified that he entered Gibson's apartment about one week after Gibson's passing and took Gibson's property to his apartment "for safekeeping for [Gibson's] family and girlfriend because [he] didn't know if they knew [Gibson] was dead." However, on cross-examination, defendant admitted that he made no effort to contact Gibson's family. Defendant further testified that he had no intent to steal anything in Gibson's apartment since he has been receiving Social Security income since 2012 and no longer needs to steal.

Inasmuch as the jury could have credited defendant's testimony that he entered Gibson's apartment and took Gibson's property for "safekeeping" and determined on that basis that the People failed to prove that he entered the apartment with the intent to steal, a different verdict would not have been unreasonable (see People v. Cruz, 152 A.D.3d 822, 823, 57 N.Y.S.3d 753 [2017], lv denied 30 N.Y.3d 1018, 70 N.Y.S.3d 451, 93 N.E.3d 1215 [2017] ). However, the jury clearly credited Diles' testimony that defendant reported taking the items because Gibson "had no need" for them and, later in the same conversation, told Diles that he "knew it was wrong." The jury also appears to have found defendant's explanation of taking the property for "safekeeping" disingenuous given his false statement to Kovarik that he wanted his television...