People v. Smith

• Decision Date: 23 November 2022
• Docket Number: 112080
• Citation: 210 A.D.3d 1297,179 N.Y.S.3d 368
• Parties: The PEOPLE of the State of New York, Respondent, v. Daquan SMITH, Appellant.
• Court: New York Supreme Court — Appellate Division

210 A.D.3d 1297

179 N.Y.S.3d 368

The PEOPLE of the State of New York, Respondent,

v.Daquan SMITH, Appellant.

112080

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

Calendar Date: October 14, 2022

Decided and Entered: November 23, 2022

Tina K. Sodhi, Alternate Public Defender, Albany (Steven M. Sharp of counsel), for appellant.

P. David Soares, District Attorney, Albany (Jonathan P. Catania of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Clark, Ceresia and Fisher, JJ.

MEMORANDUM AND ORDER

Ceresia, J. Appeal from a judgment of the Supreme Court (Peter A. Lynch, J.), rendered August 5, 2019 in Albany County, upon a verdict convicting defendant of the crimes of burglary in the second degree and criminal contempt in the first degree.

Defendant was charged with burglary in the second degree, criminal contempt in the first degree and other related crimes after breaking into the residence of his estranged wife (hereinafter the victim) in violation of an order of protection. Following a jury trial, defendant was convicted of burglary in the second degree and criminal contempt in the first degree. Supreme Court sentenced defendant, as a second violent felony offender, to a prison term of 10 years followed by five years of postrelease supervision on the burglary conviction, and an indeterminate, concurrent prison term of 2 to 4 years on the criminal contempt conviction. Defendant appeals.

Turning first to defendant's claim that his convictions are not supported by legally sufficient evidence and are against the weight of the evidence, defendant's legal sufficiency argument is unpreserved, as he failed to move to dismiss the burglary count at the close of the defense case (see People v. Cason, 203 A.D.3d 1309, 1310, 164 N.Y.S.3d 305 [3d Dept. 2022], lv denied 38 N.Y.3d 1132, 172 N.Y.S.3d 867, 193 N.E.3d 532 [2022] ), and his motion to dismiss the criminal contempt count was not directed at the error now raised on appeal (see People v. Baber, 182 A.D.3d 794, 795, 123 N.Y.S.3d 222 [3d Dept. 2020], lv. denied 35 N.Y.3d 1064, 129 N.Y.S.3d 365, 152 N.E.3d 1167 [2020] ). Nevertheless, "a weight of the evidence challenge, which bears no preservation requirement, also requires consideration of the adequacy of the evidence as to each element of the crimes" ( People v. Delbrey, 179 A.D.3d 1292, 1292–1293, 117 N.Y.S.3d 356 [3d Dept. 2020] [internal quotation marks and citations omitted], lv denied 35 N.Y.3d 969, 125 N.Y.S.3d 33, 148 N.E.3d 497 [2020] ).

To that end, "[a] person is guilty of burglary in the second degree when he [or she] knowingly enters or remains unlawfully in a building with intent to commit a crime therein, and ... [t]he building is a dwelling" ( Penal Law § 140.25[2] ). "A person ‘enters or remains unlawfully’ in or upon premises when he [or she] is not licensed or privileged to do so" ( Penal Law § 140.00[5] ). Separately, "[a] person is guilty of criminal contempt in the first degree when[,] ... in violation of a duly served order of protection," such person, "by physical menace, intentionally places or attempts to place a person for whose protection such order was issued in reasonable fear of death, imminent serious physical injury or physical injury" ( Penal Law § 215.51[b][vi] ).

The victim testified about three incidents that occurred prior to the date of the charged crimes – one on April 8, 2018 and two on June 29, 2018. With respect to the April 8, 2018 incident, defendant was living with the victim in a third-floor apartment in the City of Albany. The apartment had a front door accessed by a common stairwell inside the building, and a back door accessed by a fire escape. At some point during that day, defendant and the victim argued, and the victim locked defendant out of the apartment. Defendant then went around to the back door, kicked it in, hit the victim in the face and attempted to suffocate her, leading to the issuance on June 21, 2018 of a full stay-away order of protection. As for the subsequent incidents that occurred on June 29, 2018, the victim arrived home during the morning hours, heard a noise, and encountered defendant in the back of the apartment. The victim told defendant to leave and that she was going to call the police. By the time the police arrived, defendant had already left. The police assisted the victim in putting defendant's clothes and belongings in plastic bags and leaving them outside, next to the apartment building. That night, defendant returned to the apartment and kicked in the back door. The victim ran out the front door and down the street. She got the attention of a police officer who accompanied her back to the apartment, but defendant was no longer there.

Subsequently, on July 1, 2018, the night of the charged crimes, the victim was concerned that defendant would again come to the apartment, so she barricaded the back door with furniture. At some point thereafter, the victim heard a bang at the back door. She unsuccessfully attempted to awaken her young daughter who was sleeping beside her, and then fled through the apartment and out the front door, before falling down the stairs. Once she got outside of the building, her daughter came running out and the two of them ran around the corner to look for help. The victim was clad only in a T-shirt and boxer shorts with no shoes. While the victim never actually saw defendant inside the apartment, she testified that she "heard him behind [her]" and saw him run out of the front of the building.

According to the testimony of a neighbor, who was sitting in his car outside the apartment building that night, he "heard a boom" and saw the victim come running out the front of the apartment building, followed by her daughter. Moments later, defendant opened the neighbor's car door and jumped in, but the neighbor told defendant to get out, and he did so. The neighbor then drove around the corner and encountered the victim and her daughter. At the victim's request, the neighbor drove them to the police station.

The jury also heard testimony from several law enforcement officers, including the officer who met the victim at the police station, observed her wearing pajama-type clothing with no shoes, and described her as "frantic" and "terrified, like she was being chased by somebody." Other officers responded to the victim's apartment and detained defendant after observing him coming down the fire escape and jumping over a fence. Defendant was described as "extremely sweaty, pretty anxious and questioning why [law enforcement was] stopping him." One officer entered the apartment and observed that the back door jamb was broken and the door was halfway open, with furniture pushed against it. The People also submitted into evidence the video recording of defendant's interview with the police, during which, among other things, he denied being inside the apartment and claimed that the victim had broken the back door herself.

Had the jury been persuaded by defendant's explanation of the events in his police interview and found the victim unworthy of belief, a different verdict would not have been unreasonable (see People v. Turner, 207 A.D.3d 889, 890, 171 N.Y.S.3d 641 [3d Dept. 2022], lv denied 38 N.Y.3d 1190, 176 N.Y.S.3d 221, 197 N.E.3d 501 [2022] ; People v. Cason, 203 A.D.3d at 1314, 164 N.Y.S.3d 305 ). With that said, viewing the evidence in a neutral light and deferring to the jury's credibility assessments, we are satisfied that the verdict is not contrary to the weight of the evidence (see People v. Cason, 203 A.D.3d at 1314, 164 N.Y.S.3d 305 ; People v. Hajratalli, 200 A.D.3d 1332, 1336, 158 N.Y.S.3d 405 [3d Dept. 2021], lv denied 38 N.Y.3d 1033, 169 N.Y.S.3d 226, 189 N.E.3d 333 [2022] ). Although defendant argues that there is inadequate proof that he entered the apartment, inasmuch as the victim did not actually see him inside and the police merely observed him behind the building, it was the victim's testimony that she heard defendant chasing behind her in the apartment, and she also indicated that she saw him run out of the front of the building. This evidence, together with the reasonable inferences that can be drawn therefrom, adequately established defendant's entry into the apartment (see People v. Hunter, 55 A.D.3d 1052, 1053, 866 N.Y.S.2d 389 [3d Dept. 2008], lv denied 11 N.Y.3d 898, 873 N.Y.S.2d 274, 901 N.E.2d 768 [2008] ).

As for defendant's claim that the evidence failed to demonstrate his intent to commit a crime within the apartment, "the intent necessary for burglary can be inferred from the circumstances of the entry itself" ( People v. Cason, 203 A.D.3d at 1311, 164 N.Y.S.3d 305 [internal quotation marks and citations omitted]; see People v. Haynes, 177 A.D.3d 1194, 1195, 113 N.Y.S.3d 776 [3d Dept. 2019], lv denied 34 N.Y.3d 1128, 118 N.Y.S.3d 543, 141 N.E.3d 499 [2020] ). To that end, evidence of defendant's forced entry late at night (see People v. Hajratalli, 200 A.D.3d 1332 at 1336, 158 N.Y.S.3d 405 ; People v. Van Praag, 153 A.D.3d 559, 560, 60 N.Y.S.3d 224 [2d Dept. 2017], lv denied 30 N.Y.3d 984, 67 N.Y.S.3d 586, 89 N.E.3d 1266 [2017] ), together with the proof of a previous instance when he had entered the apartment in a similar manner and attacked the victim (see People v. Gates, 171 A.D.3d 543, 98 N.Y.S.3d 171 [1st Dept. 2019], lv denied 33 N.Y.3d 1104, 106 N.Y.S.3d 687, 130 N.E.3d 1297 [2019] ), permitted the jury to infer, as the People theorized, that defendant entered the apartment with the intent to commit a crime of violence against the victim. This same proof, contrary to defendant's contention, readily established the element of intent to place or attempt to place the victim in reasonable fear of death, serious physical injury or physical injury as required by the criminal contempt count.

We reject defendant's contention that Supreme Court erred in allowing evidence of the April 8, 2018 and June 29, 2018 incidents. The court properly found that these incidents...