People v. Race

• Citation: 78 A.D.3d 1217,910 N.Y.S.2d 271
• Parties: The PEOPLE of the State of New York, Respondent, v. Glen RACE, Appellant.
• Decision Date: 04 November 2010
• Court: New York Supreme Court — Appellate Division

910 N.Y.S.2d 271

78 A.D.3d 1217

The PEOPLE of the State of New York, Respondent,

v.Glen RACE, Appellant.

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

Nov. 4, 2010.

John R. Trice, Elmira, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), for respondent.

Before: PETERS, J.P., SPAIN, MALONE JR., STEIN and EGAN JR., JJ.

EGAN JR., J.

Appeal from a judgment of the County Court of Clinton County (Ryan, J.), rendered January 15, 2009, convicting defendant following a nonjury trial of the crimes of murder in the first degree, burglary in the first degree and grand larceny in the fourth degree (three counts).

During the early morning hours of May 11, 2007, the body of Darcy Manor was found lying on a dirt road on the groundsof the Churubusco Lodge, a hunting camp in Clinton County where Manor worked as a part-time caretaker. He had been shot one time in the back. The victim's Ford pick-up truck was missing,and a .44 caliber Ruger rifle was missing from the camp. Four days later and more than 2,000 miles away, a United States Border Patrol agent, responding to a sensor alert near Los Indios, Texas, encountered defendant walking down a road near the United States border with Mexico at the Rio Grande River. When asked to produce a passport, defendant opened his duffel bag revealing a rifle. A scuffle then ensued, during which defendant attempted to grab the officer's sidearm and bit him. Defendant was eventually subdued and taken into custody. A subsequent computer check of the rifle by the Border Patrol revealed that it had been reported stolen from the murder scene in New York.

In August 2007, defendant was indicted and charged with murder in the first degree, murder in the second degree, robbery in the first degree, three counts of grand larceny in the fourth degree and burglary in the third degree. In a subsequent indictment dated February 2008, defendant was indicted and charged with four counts of murder in the first degree, two counts of burglary in the first degree, two counts of grand larceny in the fourth degree, two counts of burglary in the second degree and criminal use of a firearm in the first and second degrees. After the two indictments were consolidated, one count was dismissed and, during the bench trial, six other counts were dismissed. Ultimately, County Court found defendant guilty of burglary in the first degree, murder in the first degree and three counts of grand larceny in the fourth degree.¹ He was thereafter sentenced to, among other things, life in prison without parole. Defendant now appeals.

Initially, we are not persuaded that County Court erred in denying defendant's request to proceed pro se, made both on the second day of trial and after the People completed their direct case. Once a trial has commenced, a defendant's right to invoke the right to represent himself or herself is "severely constricted and will be granted in the trial court's discretion and only in compelling circumstances" ( People v. McIntyre, 36 N.Y.2d 10, 17, 364 N.Y.S.2d 837, 324 N.E.2d 322 [1974] ). In this case, defendant's application to proceed pro se was untimely, having been made after the trial commenced ( see People v. Morales, 12 A.D.3d 1126, 1126, 785 N.Y.S.2d 241 [2004], lv. denied 4 N.Y.3d 746, 790 N.Y.S.2d 659, 824 N.E.2d 60 [2004]; People v. Jordan, 209 A.D.2d 544, 544, 619 N.Y.S.2d 617 [1994], lvs. denied 85 N.Y.2d 973, 975, 629 N.Y.S.2d 733, 735, 653 N.E.2d 629, 631 [1995] ). In addition, his complaints regarding defense counsel's performance, including his disagreement with the scope of counsel's cross-examinationand his contention that the withdrawal of a psychiatric defense was improper-even though there was no expert testimony to be introduced-do not establish compelling circumstances necessary to invoke his right to proceed pro se ( see People v. Jones, 277 A.D.2d 1, 715 N.Y.S.2d 402 [2000], lv. denied 96 N.Y.2d 760, 725 N.Y.S.2d 286, 748 N.E.2d 1082 [2001] ).

We note that, based on defendant's failure to renew his motion to dismiss for lack of legal sufficiency after the close of his proof, defendant's contention regarding the legal sufficiency of the evidence isunpreserved for appellate review ( see People v. Kolupa, 13 N.Y.3d 786, 787, 887 N.Y.S.2d 536, 916 N.E.2d 430 [2009]; People v. Garrow, 75 A.D.3d 849, 850, 904 N.Y.S.2d 589 [2010] ). However, since defendant also argues that the verdict was against the weight of the evidence, which does not require preservation ( see People v. Hebert, 68 A.D.3d 1530, 1531, 891 N.Y.S.2d 708 [2009], lv. denied 14 N.Y.3d 841, 901 N.Y.S.2d 147, 927 N.E.2d 568 [2010] ), "we will consider the evidence adduced as to each of the elements of the challenged crimes in the context of that review" ( People v. Vargas, 72 A.D.3d 1114, 1116, 898 N.Y.S.2d 323 [2010], lv. denied 15 N.Y.3d 758, 906 N.Y.S.2d 831, 933 N.E.2d 230 [2010] ).

With respect to the charge of murder in the first degree, the People were obligated to prove that defendant intentionally killed another while in the course of committing burglary in the first degree ( see Penal Law § 125.27[1][a][vii] ). With respect to the charge of burglary in the first degree, the People were obligated to prove that defendant knowingly entered or unlawfully remained "in a dwelling with intent to commit a crime therein, and when, in effecting entry or while in the dwelling or in immediate flight therefrom," he was armed with an explosive or deadly weapon (Penal Law § 140.30[1] ). Finally, with respect to the three counts of grand larceny in the fourth degree, the People were obligated to prove that defendant stole a credit card or debit card ( see Penal Law § 155.30[4] ), a firearm, rifle or shotgun ( see Penal Law § 155.30[7] ), and a motor vehicle valued at more than $100 ( see Penal Law § 155.30[8] ). Because a different verdict on each of the five charges in this case would not have been unreasonable, we must "weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" ( People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] [internal quotation marks and citations omitted]; see People v. Sanchez, 75 A.D.3d 911, 913, 905 N.Y.S.2d 692 [2010]; People v. Greenwood, 24 A.D.3d 818, 818, 804 N.Y.S.2d 489 [2005], lv. denied 6 N.Y.3d 813, 812 N.Y.S.2d 453, 845 N.E.2d 1284 [2006] ). Although the appellate court must review the evidence in a neutral light ( see People v. Rolle, 72 A.D.3d 1393, 1396, 900 N.Y.S.2d 187 [2010] ), "[g]reat deference is accorded to the fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor" ( People v. Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). And, as relevant here, "the appropriate standard forevaluating a weight of the evidence argument on appeal is the same regardless of whether the finder of fact was a judge or a jury" ( People v. Lane, 7 N.Y.3d 888, 890, 826 N.Y.S.2d 599, 860 N.E.2d 61 [2006] ).

The trial testimony established that the victim spoke with his wife by telephone at approximately 4:00 P.M. on May 10, 2007, and he told her that, on his way home from his regular job, he was going to stop by the hunting camp to work on the water pump. At approximately 4:30 P.M., two area residents observed defendant on a road, one quarter of a mile from the camp, walking in its direction. At approximately 6:15 P.M., a third resident observed the victim's pickup truck driving away from the camp at a speed faster than normal. When the victim had not arrived home by 6:30 P.M. as expected, his wife and their two children drove to the camp's gate but found it locked, with no sign of the victim or his truck. At approximately 8:00 P.M., when the victim still had not returned home, his wife called several friends who...