People v. Reyes

• Citation: 908 N.Y.S.2d 14,76 A.D.3d 864
• Parties: The PEOPLE of the State of New York, Respondent, v. Pasqual REYES, etc., Defendant-Appellant.
• Decision Date: 14 September 2010
• Court: New York Supreme Court — Appellate Division

908 N.Y.S.2d 14
76 A.D.3d 864

The PEOPLE of the State of New York, Respondent,
v.
Pasqual REYES, etc., Defendant-Appellant.

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

Sept. 14, 2010.

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Richard M. Greenberg, Office of the Appellate Defender, New York (Joseph M. Nursey of counsel), and Jones Day, New York (Michael Dallal of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Sara M. Zausmer of counsel), for respondent.

SAXE, J.P., BUCKLEY, McGUIRE, MOSKOWITZ, ACOSTA, JJ.

76 A.D.3d 864

Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered December 6, 2007, convicting defendant, after a jury trial, of burglary in the second degree, endangering the welfare of a child and four counts of sexual abuse in the third degree, and sentencing him to an aggregate term of 4 years, affirmed.

The deliberating jury sent a note in relation to the second-

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degree burglary count for "clarification of intent-How does the age of the victim impact on intent?"

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In response the court stated that it would tell the jury:

"The answer to their intent question is if he intended to go into the building with a person and intended to have physical contact with that person, the age does not matter. In essence, he's stuck with the age."

Defense counsel objected, "No. No. No. No," and requested that the court reread its original instruction on that subject:

"I'm asking for the readback of just the burglary with just the intent because in order to commit a crime, in a burglary situation, I believe that he has to know the age of the person when he goes in. He doesn't have to know the age of the person to commit the underlying crimes of the sex[ual] abuse. But in order to have an intent to commit a crime inside, burglary in the second degree [he does]. And you are guaranteeing a conviction."

The court responded by saying "It's not. And once again, if there is a conviction-as you now predict-this is the first point on appeal, I gather."

Because the trial court ruled on defense counsel's objection, the court demonstrated "that [it] specifically confronted and resolved this issue. Under these circumstances, ... preservation was adequate" ( People v. Feingold, 7 N.Y.3d 288, 290, 819 N.Y.S.2d 691, 852 N.E.2d 1163 [2006]; CPL 470.05[2] ).

However, the court declined to reread its instruction and instead delivered a more specific instruction. Counsel "did not specify why the charge as given was inadequate. Thus, while there was preservation as to the court's refusal to charge in accordance with defendant's request, there was no preservation with respect to error in the [intent] charge as given" ( People v. Hoke, 62 N.Y.2d 1022, 1023, 479 N.Y.S.2d 495, 468 N.E.2d 677 [1984] ). Because the jury had already expressed its inability to understand the original instructions, it was appropriate for the court to provide more than the simple readback counsel had requested. While counsel raised a specific issue regarding defendant's intent, he never requested anything but a rereading of the original charge and made no objection to the supplemental charge the court actually delivered until he made his postverdict motion, which had no preservation effect ( see People v. Padro, 75 N.Y.2d 820, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [1990] ). This Court recently found a lack of preservation in People v. Hesterbay, 60 A.D.3d 564, 875 N.Y.S.2d 478 [2009], lv. denied 12 N.Y.3d 916, 884 N.Y.S.2d 697, 912 N.E.2d 1078 [2009], when defense counsel only asked the court to reread the elements of the crimes in response to the jury's note. The Court of Appeals recently reiterated its warnings to the defense bar about the importance of specifying objections sufficiently to "alert the

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trial court to the argument now being advanced" ( People v. Hawkins, 11 N.Y.3d 484, 493, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008] ). Accordingly, by only asking for a rereading of the original charge on intent in the second-degree burglary charge, defendant's present claim that the supplemental instruction was incorrect or prejudicially misleading is unpreserved and we decline to review it in the interest of justice.

As an alternative holding, we also reject defendant's present claim on the merits. Defendant argues that his commission of strict liability offense of third-degree sexual abuse was not sufficient to satisfy the specific element of burglary that he "intended" to commit a crime when he entered the building. However, as the trial court correctly explained in its supplemental charge:

"How does the age of victim impact on intent? If the jury determines that a

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person intentionally went into a building for the purposes of having some sexual contact with an underaged person, even if the accused did not know the age of the underaged person, it would not matter.

"The intent-the intent that the law would focus on under those circumstances are the intent to have sexual contact.

"And the law says that a person is responsible for the age of a person with whom they have sexual interaction of any sort, notwithstanding the fact that the actor-supposed actor did not know the actual age, even if the person who was the supposed victim informed the person of a different age than what the person actually was."

The crimes of which the jury convicted defendant were endangering the welfare of a child and four counts of sexual abuse in the third degree. The convictions are all strict liability crimes, in which, for the sexual abuse, the victim's lack of consent was based on the victim's incapacity because of age (Penal Law § 130.55 ["A person is guilty of sexual abuse in the third degree when he or she subjects another person to sexual contact without the latter's consent"]; Penal Law § 130.05[3][a] ["A person is deemed incapable of consent when he or she is ... less than seventeen years old"] ). And Penal Law § 260.10(1) states:

"A person is guilty of endangering the welfare of a child when:

1. He knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old ..."

At the trial, the People established that the victim was 14 years old and defendant was 32 years old. Because these misdemeanors do not require a specific intent, can their violation satisfy the intent required for a second-degree burglary conviction?

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Penal Law § 140.25(2) states:

"A person is guilty of burglary in the second degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein, and when ... 2. The building is a dwelling."

Matter of Gormley v. New York State Ethics Commn., 11 N.Y.3d 423, 872 N.Y.S.2d 392, 900 N.E.2d 943 [2008], is instructive. In discussing the Penal Law definitions of "knowingly" and "intentionally" to construe Public Officers Law § 73, the court noted the definitions revolve around a conscious objective to engage in conduct as opposed to a conscious objective to violate a statute ( id. at 427, 872 N.Y.S.2d 392, 900 N.E.2d 943). Thus, Penal Law § 15.05(1) states:

"1: 'Intentionally.' A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct " (emphasis added).

Here, the trial court correctly charged the jury that all the People had to prove was that defendant entered the building intending to have sexual contact with the victim. The People did not have to prove that defendant intended to commit a crime or that he knew the victim's age or that she was under 17, as that was irrelevant to the intention necessary for the jury to find defendant committed burglary in the second degree.

This analysis is similar to the reasoning utilized in convictions for attempt. A defendant may intend to commit a particular act but does not complete the act because of legal impossibility. Even though the crime itself may not require intent because it is a strict liability crime, the defendant

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may be convicted of the...