People v. Reed

• Decision Date: 26 May 1988
• Citation: 528 N.Y.S.2d 916,140 A.D.2d 881
• Parties: The PEOPLE of the State of New York, Respondent, v. Mark REED, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 916

528 N.Y.S.2d 916

140 A.D.2d 881

The PEOPLE of the State of New York, Respondent, v. Mark REED, Appellant.

Supreme Court, Appellate Division,

Third Department.

May 26, 1988.

James J. Brearton, Latham, for appellant.

James B. Canfield, Dist. Atty. (Stephen P. Hogan, of counsel), Troy, for respondent.

Before MAHONEY, P.J., and WEISS, LEVINE, HARVEY and MERCURE, JJ.

WEISS, Justice.

Appeal from a judgment of the County Court of Rensselaer County (Dwyer, Jr., J.), rendered January 16, 1987, upon a verdict convicting defendant of the crime of burglary in the third degree.

On October 16, 1985, three men entered a boutique in the City of Troy, Rensselaer County, shortly after midnight and exited carrying merchandise later identified as clothing. This activity was witnessed and reported to the police by Eugene Harris. Officer Joseph House, who responded, recognized defendant and codefendant Benjamin Rountree run down Congress Street, drop the clothing and disappear in a nearby apartment complex. House secured the clothing, later identified as "On Broadway" boutique merchandise valued at approximately $647, and reported the events to his supervisor, Captain Nicholas Kaiser, who instructed him to obtain arrest warrants. Shortly thereafter, House observed defendant alone and asked him where Rountree was, but did not make an arrest. Defendant and Rountree were indicted for burglary in the third degree, grand larceny in the second degree and criminal possession of stolen property in the first degree. After a joint trial, they were convicted only on the burglary charge. Defendant moved to set the verdict aside pursuant to CPL 330.30(3) based on newly discovered evidence consisting of the testimony of Anthony Wallace, who had been an alibi witness for Rountree. Following a hearing, County Court rejected the Wallace testimony as contradictory and incredible, and thereafter sentenced defendant to a prison term of 1 1/3 to 4 years. This appeal ensued.

We affirm. Initially, defendant appears to challenge the jury's verdict as repugnant. Our review of the jury charge, however, confirms that the verdict was not inherently inconsistent. Each charge on which defendant was acquitted included a minimum property value element of $1,500 (see, Penal Law former §§ 155.35, 165.50). While the boutique owner testified that $6,000 in merchandise had been stolen, the recovered items were valued at only $647. Thus, the jury could readily have concluded that the People failed to satisfy the value threshold. It follows that the burglary conviction, which did not include a minimum value element, was not inconsistent ( see, People v. Tucker, 55 N.Y.2d 1, 6, 447 N.Y.S.2d 132, 431 N.E.2d 617; People v. Schmid, 124 A.D.2d 896, 897-898, 508 N.Y.S.2d 314, lv. denied 69 N.Y.2d 955, 516 N.Y.S.2d 1039, 509 N.E.2d 374).

Defendant further asserts his acquittal on the criminal possession of stolen property charge confirms that the People failed to establish his guilt beyond a reasonable doubt. Again, we disagree. "Recent, unexplained, exclusive possession of the fruits of a burglary may raise an inference of guilt sufficient to support a conviction of burglary" ( People v. Measheaw, 108 A.D.2d 952, 953, 484 N.Y.S.2d 939). Viewed in a light most favorable to the People ( see, People v. Lewis, 64 N.Y.2d 1111, 1112, 490 N.Y.S.2d 166, 479 N.E.2d 802), the jury could reasonably have inferred from the circumstances described by Harris and House that defendant committed the burglary ( see, People v. Baskerville, 60 N.Y.2d 374, 382, 469 N.Y.S.2d 646, 457 N.E.2d 752; People v. Measheaw, supra; People v. Sim, 53 A.D.2d 992, 993, 386 N.Y.S.2d 114, affd. on mem below 44 N.Y.2d 758, 405 N.Y.S.2d 686, 376 N.E.2d 1331). Whether House had an adequate basis to identify defendant presented a credibility issue for the jury to resolve ( see, People v. Malizia, 62 N.Y.2d 755, 757, 476 N.Y.S.2d 825, 465 N.E.2d 364, cert. denied 469 U.S. 932, 105 S.Ct. 327, 83 L.Ed.2d 264). House testified that he first observed defendant and Rountree from a distance of 20 feet under well-lighted conditions. Moreover, we do not agree with defendant's assertion that Kaiser was improperly allowed to bolster House's identification testimony. By cross-examining House on his failure to arrest defendant on the morning in question, defense counsel intimated that House was then uncertain as to his ability to identify defendant. Since defendant opened the door on this issue, the People were entitled to present Kaiser's testimony that House named the suspects at the scene, and was instructed to secure arrest warrants before placing them under arrest ( see, People v. Singletary, 54 A.D.2d 767, 387 N.Y.S.2d 878). This testimony was clearly designed to rebut the negative inference initiated by the defense...