People v. Reibel, 1242

• Decision Date: 13 March 2020
• Docket Number: KA 17–02143,1242
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael REIBEL, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

181 A.D.3d 1268

119 N.Y.S.3d 659

The PEOPLE of the State of New York, Respondent,

v.Michael REIBEL, Defendant–Appellant.

1242

KA 17–02143

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

Entered: March 13, 2020

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ERIN A. KULESUS OF COUNSEL), FOR DEFENDANT–APPELLANT.

MICHAEL REIBEL, DEFENDANT–APPELLANT PRO SE.

JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., SMITH, CURRAN, WINSLOW, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the second degree ( Penal Law § 140.25 [2] ), criminal contempt in the first degree (§ 215.51[b][ii] ), stalking in the third degree (§ 120.50[3] ), and unlawful imprisonment in the second degree (§ 135.05). The conviction arises from an incident in which defendant, in violation of an order of protection, entered the home of his former girlfriend by breaking a glass door, dragged her from her home, and transported her to another location. Contrary to defendant's contention in his main brief, Supreme Court properly denied his request to charge criminal trespass in the second degree as a lesser included offense of the count of burglary in the second degree (see generally People v. Cajigas, 19 N.Y.3d 697, 701–702, 955 N.Y.S.2d 296, 979 N.E.2d 240 [2012] ). Here, based on all the evidence at trial, including defendant's testimony, we conclude that "the only reasonable view of the evidence is that defendant knowingly entered or remained unlawfully in a dwelling (see Penal Law § 140.15[1] ), intending to engage in conduct prohibited by the order of protection while in the banned premises that went beyond criminal trespass, thereby satisfying the intent to commit a crime therein element of burglary" ( People v. Mack, 128 A.D.3d 1456, 1457, 8 N.Y.S.3d 848 [4th Dept. 2015], lv denied 26 N.Y.3d 969, 18 N.Y.S.3d 605, 40 N.E.3d 583 [2015] [internal quotation marks omitted]; see People v. Lewis, 5 N.Y.3d 546, 548, 807 N.Y.S.2d 1, 840 N.E.2d 1014 [2005] ; see also People v. Lopez, 147 A.D.3d 456, 456, 46 N.Y.S.3d 591 [1st Dept. 2017], lv denied 29 N.Y.3d 999, 57 N.Y.S.3d 720, 80 N.E.3d 413 [2017] ). Consequently, we further conclude that "under no reasonable view of the evidence could the jury have found that defendant committed the lesser offense but not the greater" ( People v. Blim, 63 N.Y.2d 718, 720, 480 N.Y.S.2d 192, 469 N.E.2d 513 [1984] ; see generally People v. Glover, 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 439 N.E.2d 376 [1982] ).

Similarly, the court also properly denied defendant's "request to charge criminal contempt in the second degree ... as a lesser included offense of criminal contempt in the first degree because no reasonable view of the evidence ‘would support a finding that [defendant] committed the lesser offense but not the greater’ " ( People v. Wilson, 55 A.D.3d 1273, 1274, 865 N.Y.S.2d 445 [4th Dept. 2008], lv denied 11 N.Y.3d 931, 874 N.Y.S.2d 17, 902 N.E.2d 451 [2009] ; see Mack, 128 A.D.3d at 1457, 8 N.Y.S.3d 848 ).

Defendant failed to preserve for our review his challenge in his main brief to the admission in evidence of a series of text messages between him and the victim. Defendant did not object to the admission of the text messages on the specific ground he now raises on appeal (cf. People v. Grigoroff, 131 A.D.3d 541, 544, 14 N.Y.S.3d 497 [2d Dept. 2015] ; see generally People v. Law, 94 A.D.3d 1561, 1562, 943 N.Y.S.2d 814 [4th Dept. 2012], lv denied 19 N.Y.3d 809, 2012 WL 3743354 [2012] ). In any event, any error in admitting those text messages in evidence is harmless (see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).

Defendant contends in his main brief that the conviction of criminal contempt in the first degree is not supported by legally sufficient evidence because the People failed to establish that he placed the victim "in reasonable fear of physical injury" by "engaging in a course of conduct" ( Penal Law § 215.51[b][ii] ). We reject that contention. To the contrary, we conclude that the evidence is sufficient inasmuch as there is a "valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial" ( People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ; see People v. Doherty, 173 A.D.3d 592, 592–593, 105 N.Y.S.3d 77 [1st Dept. 2019], lv denied 34 N.Y.3d 930, 109 N.Y.S.3d 748, 133 N.E.3d 454 [2019] ; People v. Clark, 65 A.D.3d 755, 757–758, 883 N.Y.S.2d 824 [3d Dept. 2009], lv denied 13 N.Y.3d 906, 895 N.Y.S.2d 320, 922 N.E.2d 909 [2009] ). Furthermore, viewing the evidence in light of the elements of all of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we also reject defendant's contention that the verdict is against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). With respect to defendant's contention in his main brief that the verdict is contrary to the weight of the evidence because he established that he was too intoxicated to form the intent to commit the crimes, "[a]lthough there was evidence at trial that defendant consumed a significant quantity of alcohol on the night of the incident, [a]n intoxicated person can form the requisite criminal intent to commit a crime, and it is for the trier of fact to decide if the extent of the intoxication acted to negate the element of intent" ( People v. Felice, 45 A.D.3d 1442, 1443, 846 N.Y.S.2d 531 [4th Dept. 2007], lv denied 10 N.Y.3d 764, 854 N.Y.S.2d 326, 883 N.E.2d 1261 [2008] [internal quotation marks omitted]; see People v. Principio, 107 A.D.3d 1572, 1573, 966 N.Y.S.2d 801 [4th Dept. 2013], lv denied 22 N.Y.3d 1090, 981 N.Y.S.2d 675, 4 N.E.3d 977 [2014] ). Here, we perceive no basis to disturb the jury's determination with respect to defendant's intoxication (see Principio, 107 A.D.3d at 1573, 966 N.Y.S.2d 801 ).

Contrary to defendant's contention in his pro se supplemental brief, the People were not required to prove that he intended to commit a specific crime in the dwelling. It is well settled that, where, as here, the People did not limit the theory of prosecution to a specific crime in the indictment or a bill of particulars, they are required to plead and prove "only defendant's general intent to commit a crime in the [dwelling] ..., not his [or her] intent to commit a specific crime" ( Lewis, 5 N.Y.3d at 552, 807 N.Y.S.2d 1, 840 N.E.2d 1014 ).

Contrary to defendant's additional contention in his pro se supplemental brief, the court did not err in refusing to suppress the statements defendant gave to the police. " ‘It is well settled ... that, in order to terminate questioning, the assertion by a defendant of his right to remain silent must be unequivocal and unqualified’ " ( People v. Zacher, 97 A.D.3d 1101, 1101, 948 N.Y.S.2d 509 [4th Dept. 2012], lv denied 20 N.Y.3d 1015, 960 N.Y.S.2d 359, 984 N.E.2d 334 [2013] ). The issue whether defendant's "request was ‘unequivocal is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request[,] including the defendant's demeanor, manner of expression and the particular words found to have been used by the defendant’ " ( id., quoting People v. Glover, 87 N.Y.2d 838, 839, 637 N.Y.S.2d 683, 661 N.E.2d 155 [1995] ). Here, we agree with the People that defendant "did not clearly communicate a desire to cease all questioning indefinitely" ( People v. Caruso, 34 A.D.3d 860, 863, 822 N.Y.S.2d 825 [3d Dept. 2006], lv denied 8 N.Y.3d 879, 832...