People v. Royster

• Decision Date: 27 June 2013
• Citation: 2013 N.Y. Slip Op. 04847,107 A.D.3d 1298,967 N.Y.S.2d 533
• Parties: The PEOPLE of the State of New York, Respondent, v. William ROYSTER, Appellant.
• Court: New York Supreme Court — Appellate Division

107 A.D.3d 1298
967 N.Y.S.2d 533
2013 N.Y. Slip Op. 04847

The PEOPLE of the State of New York, Respondent,
v.
William ROYSTER, Appellant.

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

June 27, 2013.

[967 N.Y.S.2d 535]

Aaron A. Louridas, Delmar, for appellant.

P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.

Before: PETERS, P.J., ROSE, STEIN and GARRY, JJ.

ROSE, J.

[107 A.D.3d 1299]Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered November 23, 2011, upon a verdict convicting defendant of the crimes of burglary in the second degree, criminal possession of stolen property in the third degree, petit larceny (two counts), possession of burglar's tools and criminal possession of stolen property in the fifth degree.

Defendant was charged in an eight-count indictment in connection with the theft of a motor vehicle and two residential burglaries. He was convicted by a jury of one count of burglary in the second degree, criminal possession of stolen property in the third degree, two counts of petit larceny, possession of burglar's tools and criminal possession of stolen property in the fifth degree. County Court sentenced

[967 N.Y.S.2d 536]

defendant, as a second felony offender, to an aggregate prison term of 17 to 20 years with five years of postrelease supervision. He now appeals.

Defendant failed to preserve his challenge to the legal sufficiency of the evidence. Nevertheless, we will necessarily evaluate whether the evidence supports each element of the crimes in the course of our review of his claim that the verdict is contrary to the weight of the evidence ( see People v. Townsend, 94 A.D.3d 1330, 1330 n. 1, 943 N.Y.S.2d 276 [2012],lv. denied19 N.Y.3d 1105, 955 N.Y.S.2d 561, 979 N.E.2d 822 [2012] ). Where, as here, an acquittal would not have been unreasonable, we view the evidence in a neutral light and, while giving deference to the jury's credibility determinations, “ ‘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], quoting People ex rel. MacCracken v. Miller, 291 N.Y. 55, 62, 50 N.E.2d 542 [1943] ). In doing so, we find merit in defendant's argument that the convictions of petit larceny with respect to a cellular telephone taken from one of the residences and possession of burglar's tools are against the weight of the evidence.

To convict defendant of petit larceny, the People were required to prove beyond a reasonable doubt that he stole property ( seePenal Law § 155.25). The phone's owner testified that it was taken from her home and there was evidence that, in the hours after the phone was stolen, it was used to call a telephone number belonging to defendant's mother as well as a local office of the Salvation Army, which reported receiving a message from defendant that same morning. There was, however, no evidence placing defendant near the home at any time and the stolen phone itself was never recovered. Inasmuch as the People's theory was that defendant had stolen the phone during the course [107 A.D.3d 1300]of burglarizing the residence and he was acquitted of that burglary, we conclude that the weight of the evidence does not support a finding that defendant stole the phone ( see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007];compare People v. Edwards, 96 A.D.3d 1089, 1090–1091, 946 N.Y.S.2d 269 [2012],lv. denied19 N.Y.3d 1102, 955 N.Y.S.2d 557, 979 N.E.2d 818 [2012];People v. Brisson, 68 A.D.3d 1544, 1546–1547, 892 N.Y.S.2d 618 [2009],lv. denied14 N.Y.3d 798, 899 N.Y.S.2d 132, 925 N.E.2d 936 [2010] ).

The People also failed to prove that defendant, who had a screwdriver on his person upon his arrest, possessed that item “under circumstances evincing an intent to use [it] ... in the commission of [a burglary]” (Penal Law § 140.35). Simply put, there was no evidence that defendant had used the screwdriver in a manner evidencing an unlawful intent. There was, on the other hand, evidence that homeless individuals, such as defendant, often carry tools for other purposes. Accordingly, defendant's conviction for possession of burglar's tools was contrary to the weight of the evidence ( see People v. Watson, 45 A.D.3d 1342, 1343, 844 N.Y.S.2d 791 [2007],lv. denied10 N.Y.3d 818, 857 N.Y.S.2d 51, 886 N.E.2d 816 [2008];compare People v. Borrero, 26 N.Y.2d 430, 436, 311 N.Y.S.2d 475, 259 N.E.2d 902 [1970];People v. Morgan, 9 A.D.3d 375, 376, 779 N.Y.S.2d 585 [2004],lv. denied3 N.Y.3d 741, 786 N.Y.S.2d 820, 820 N.E.2d 299 [2004] ).

Defendant also argues that his conviction for criminal possession of stolen property in the third degree for theft of a motor vehicle must be reversed because the People failed to prove his knowledge

[967 N.Y.S.2d 537]

that the vehicle was stolen and that its value exceeded $3,000 ( seePenal Law § 165.50). In addition, defendant argues that County Court abused its discretion by imposing an insufficient sanction for the People's failure to timely provide photographs of the vehicle...