People v. Robtoy

• Decision Date: 03 November 2016
• Parties: The PEOPLE of the State of New York, Respondent, v. Bradley J. ROBTOY, Appellant.
• Court: New York Supreme Court — Appellate Division

144 A.D.3d 1190
40 N.Y.S.3d 630
2016 N.Y. Slip Op. 07232

The PEOPLE of the State of New York, Respondent,
v.
Bradley J. ROBTOY, Appellant.

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

Nov. 3, 2016.

40 N.Y.S.3d 631

Mitch Kessler, Cohoes, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Timothy Blatchely of counsel), for respondent.

Before: McCARTHY, J.P., GARRY, DEVINE, CLARK and MULVEY, JJ.

McCARTHY, J.P.

144 A.D.3d 1190

Appeal from a judgment of the County Court of Clinton County (McGill, J.), rendered September 3, 2013, upon a verdict convicting defendant of the crimes of criminal possession of stolen property in the fourth degree (two counts), criminal possession of stolen property in the fifth degree (three counts) and conspiracy in the fifth degree.

40 N.Y.S.3d 632

After recovering copper wire reported to be stolen and reported to have been sold to scrap yards by, among others, defendant, authorities charged defendant with two counts of

144 A.D.3d 1191

criminal possession of stolen property in the fourth degree, three counts of criminal possession of stolen property in the fifth degree and one count of conspiracy in the fifth degree. Following a jury trial, defendant was convicted on all counts and sentenced, as a second felony offender, to an aggregate prison term of 2 to 4 years. Defendant appeals, and we affirm.

The overwhelming evidence of defendant's guilt renders his contention that the verdict was against the weight of the evidence without merit. “A person is guilty of criminal possession of stolen property in the fourth degree when he [or she] knowingly possesses stolen property, with intent to benefit himself[, herself] or a person other than an owner thereof or to impede the recovery by an owner thereof, and when ... [t]he value of the property exceeds [$1,000]” (Penal Law § 165.45[1] ). “A person is guilty of criminal possession of stolen property in the fifth degree when he [or she] knowingly possesses stolen property, with intent to benefit himself[, herself] or a person other than an owner thereof or to impede the recovery by an owner thereof” (Penal Law § 165.40 ). “A person is guilty of conspiracy in the fifth degree when, with intent that conduct constituting ... a felony be performed, he [or she] agrees with one or more persons to engage in or cause the performance of such conduct” and at least one of the conspirators commits an overt act in furtherance of the conspiracy (Penal Law § 105.05[1] ; see Penal Law § 105.20 ; People v. Canale, 268 A.D.2d 699, 699, 704 N.Y.S.2d 151 [2000] ).

A variety of evidence presented by multiple witnesses established defendant's commission of the aforementioned crimes. Tire tracks leading away from the construction site at which copper wire valued at approximately $18,000 to $20,000 was stolen were similar to the tread on the tires of defendant's vehicle and were similar to tire tracks in defendant's driveway. Defendant was clearly identified-by security video, eyewitness identification and photocopies of identification that he provided-along with other men, as selling copper wire to scrap yards in the aftermath of the theft, some of which was recovered. When defendant was arrested, he had exactly the amount of cash on him that matched a recent scrap yard sale and had two receipts on him regarding such scrap yard sales. A codefendant engaged in selling the recovered copper wire with defendant used a fake name while selling such wire and, at least on one occasion, defendant and the other men involved in the sales made a point of selling copper wire in increments small enough so that they could receive cash instead of checks. One scrap yard employee explained that defendant appeared to

144 A.D.3d 1192

be generally concerned with hiding the copper wire that he wished to sell, storing it under a blanket in his vehicle.

Based on the company name, size and types of reels of some of the copper wire recovered by police that defendant had sold, the wire was identified as that which had been stolen. Further, authorities found copper wire in defendant's home, some of which had tags that matched the tags on wire that had been stolen. Further proof regarding the value of the property that defendant stole established that defendant received more that $2,300 in exchange for copper wire on April 17, 2016. On April 18, 2016 and at one scrap yard, defendant and the men that he was with received more than $1,600 in exchange for copper wire. Considering the evidence as a whole, the verdict was not

40 N.Y.S.3d 633

against the weight of the evidence (see People v. Smith, 138 A.D.3d 1248, 1250, 29 N.Y.S.3d 660 [2016], lv. denied 27 N.Y.3d 1139 [2016] ; People v. Helms, 119 A.D.3d 1153, 1155, 990 N.Y.S.2d 314 [2014], lv. denied 24 N.Y.3d 1044, 998 N.Y.S.2d 314, 23 N.E.3d 157 [2014] ; People v. Royster, 107 A.D.3d 1298, 1300–1301, 967 N.Y.S.2d 533 [2013], lv. denied 22 N.Y.3d 958, 977 N.Y.S.2d 189, 999 N.E.2d 554 [2013] ; People v. Hardy, 57 A.D.3d 1100, 1102, 868 N.Y.S.2d 829 [2008], lv. denied 12 N.Y.3d 784, 879 N.Y.S.2d 60, 906 N.E.2d 1094 [2009] ; People v. Swackhammer, 65 A.D.3d 713, 714, 883 N.Y.S.2d 651 [2009] ; People v. Ormsby, 5 A.D.3d 868, 870–871, 774 N.Y.S.2d...