People v. Spencer, 106699.

• Decision Date: 13 July 2017
• Docket Number: 106699.
• Citation: 152 A.D.3d 863,59 N.Y.S.3d 499
• Parties: The PEOPLE of the State of New York, Respondent, v. Joshua J. SPENCER, Appellant.
• Court: New York Supreme Court — Appellate Division

152 A.D.3d 863

59 N.Y.S.3d 499

The PEOPLE of the State of New York, Respondent,

v.Joshua J. SPENCER, Appellant.

106699.

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

July 13, 2017.

Alexander W. Bloomstein, Hillsdale, for appellant.

Paul Czajka, District Attorney, Hudson (James A. Carlucci of counsel), for respondent.

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

McCARTHY, J.P.

Appeal from a judgment of the County Court of Columbia County (Nichols, J.), rendered March 3, 2014, upon a verdict convicting defendant of the crimes of burglary in the first degree (two counts) and criminal possession of a weapon in the second degree (two counts).

Defendant, along with his codefendants Christopher Anderson and Jeremy Bost,¹ was charged in a nine-count indictment for a series of events stemming from three home invasions occurring in January 2012. After a jury trial, defendant was convicted of two counts of burglary in the first degree (counts 1 and 2) and two counts of criminal possession of a weapon in the second degree (counts 3 and 4)—all of which related to the same home invasion on January 12, 2012—and acquitted of the remaining charges related to the other home invasions. Defendant was thereafter sentenced to 15 years in prison for each conviction of burglary in the first degree, to run concurrently, and 10 years in prison for each conviction of criminal possession of a weapon in the second degree, to run concurrently with each other but consecutively to the burglary convictions. Defendant now appeals.

Defendant first contends that the evidence was legally insufficient to support his convictions and that the verdict was against the weight of the evidence. Although defendant's challenge to the legal sufficiency of the evidence is unpreserved given that he did not renew his motion to dismiss at the close of all the proof (see People v. Pigford, 148 A.D.3d 1299, 1300, 48 N.Y.S.3d 837 [2017] ), "our weight of the evidence review includes an evaluation as to whether the elements of the crimes for which [defendant] was convicted were prove[n] beyond a reasonable doubt" ( People v. Mesko, 150 A.D.3d 1412, 1412, 55 N.Y.S.3d 748 [2017] ; see People v. Morgan, 149 A.D.3d 1148, 1149, 51 N.Y.S.3d 218 [2017] ). Insofar as a different verdict would not have been unreasonable, we "weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions" in order to determine whether the verdict is against the weight of the evidence ( People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; see People v. Bailey, 94 A.D.3d 904, 905, 942 N.Y.S.2d 165 [2012], lv. denied 19 N.Y.3d 957, 950 N.Y.S.2d 109, 973 N.E.2d 207 [2012] ).

As for counts 1 and 2 of the indictment, a person is guilty of burglary in the first degree when he or she "knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein, and when, in effecting entry or while in the dwelling or in immediate flight therefrom, he [or she] or another participant in the crime ... [i]s armed with ... a deadly weapon; or ... [d]isplays what appears to be a pistol ... or other firearm" ( Penal Law § 140.30[1], [4] ). With respect to counts 3 and 4 of the indictment, "[a] person is guilty of criminal possession of a weapon in the second degree where he or she intends to use a loaded firearm unlawfully against another person or possesses any loaded firearm outside of his or her home or business" ( People v. Bost, 139 A.D.3d 1317, 1321, 32 N.Y.S.3d 385 [2016] [internal citations omitted]; see Penal Law § 265.03[1][b] ; [3] ). Additionally, in order to find that defendant was guilty of these charges pursuant to a theory of accessory liability, the People had to prove, beyond a reasonable doubt, that he "possessed the mental culpability necessary to commit the crime[s] charged, and that in furtherance thereof, he solicited, requested, commanded, importuned or intentionally aided" Anderson and/or Bost in their commission of the crimes as the principal actors ( People v. Bailey, 94 A.D.3d at 905, 942 N.Y.S.2d 165 [internal quotation marks and citations omitted]; see Penal Law § 20.00 ). In this regard, defendant's intent may be inferred from his "actions and the surrounding circumstances" ( People v. Newell, 148 A.D.3d 1216, 1221, 48 N.Y.S.3d 800 [2017] [internal quotation marks and citations omitted], lv. denied 29 N.Y.3d 1035, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2017] ).

During the trial, the victims of the January 12, 2012 burglary—a husband and wife—testified that they were asleep in bed when the husband heard someone walking inside the house. He got up to investigate and, after turning a light on, saw two people holding handguns. The husband testified that one intruder was wearing a mask and holding an automatic handgun and the other intruder was wearing a bandana over his face and holding a pistol. The wife testified that both men were wearing dark hooded sweatshirts. The husband further testified that, at that point, he heard "a pistol being engaged" and "saw the guns coming up" as the intruders began to run towards him. The husband barricaded himself in another room and the wife yelled at the intruders until they left the house. The victims saw a vehicle leaving their house and called the police. While the victims noted that a downstairs door remained open, none of their property was taken or disturbed.

Shortly thereafter, local police officers received a 911 dispatch call alerting them to the home invasion. They were told that the suspects were wearing dark hooded sweatshirts and that a handgun was displayed. En route to the crime scene, one of the officers spotted a car whose driver was wearing a dark hooded sweatshirt and stopped the vehicle after it turned without signaling. Although the vehicle belonged to defendant, Anderson was driving. Bost was sitting in the backseat, defendant was seated in the back middle seat and there were two female passengers, one seated in the front passenger seat and one seated in the back. One of the officers testified that there was a black mask on the floor between Bost and defendant, both of whom were also wearing dark hooded sweatshirts. After state troopers arrived at the scene, they conducted a search of Bost and discovered two handguns in his waistband, one of which was loaded. Later, a search of the vehicle revealed an unfired .45 caliber bullet located on the passenger floor. A firearms expert testified that both of the recovered weapons were operable.

Shavanyce Lewis, who was sitting in the backseat, testified that she was with Catrina Lewis—who was sitting in the front passenger seat—Bost, Anderson and defendant on January 12, 2012. She explained that they intended to go to a party in defendant's vehicle. However, Shavanyce Lewis testified that, before going to the party, Bost directed Anderson to the victims' residence and Anderson pulled defendant's car into the driveway. Although there was no conversation about what they were doing there, Shavanyce Lewis testified that defendant said, "[W]e shouldn't bring those in the house," referring to the two handguns, but that Anderson and Bost disagreed with defendant. Catrina Lewis testified that she heard a gun slide engage while they were in the car. Both women said that all three men exited the vehicle at the same time, returned to the vehicle at roughly the same time after approximately five minutes and that Anderson drove them away. Shavanyce Lewis said that, after they left the victims' home, Anderson handed his weapon to Bost and told them that he had tried to fire his handgun at one of the victims, but his gun jammed. Bost placed Anderson's weapon behind him. Shavanyce Lewis further testified that defendant did not speak after he got back into the car, but that he looked "nervous [and] scared."

Although a different verdict would not have been unreasonable, viewing the evidence in a neutral light and deferring to the jury's determinations of credibility, the evidence establishes that defendant was liable as an accomplice to Anderson and Bost in committing burglary in the first degree. Defendant's intent to burglarize the home may be reasonably inferred from his statement about the guns and the fact that he left and returned to the car at the same time as Anderson and Bost (see People v. Newell, 148 A.D.3d at 1221, 48 N.Y.S.3d 800). Additionally, while "defendant's mere presence at the scene of the crime is, standing alone, insufficient to support a finding of criminal liability," the lack of discussion between defendant, Anderson and Bost as to their purpose at the victims' home prior to exiting the vehicle indicated that defendant knew what that purpose was, his behavior after returning to the car was evidence of consciousness of guilt and, under the circumstances, the fact that he supplied the vehicle for the endeavor provided proof that he intentionally aided Anderson and Bost ( People v. Knox, 137 A.D.3d 1330, 1331–1333, 25 N.Y.S.3d 751 [2016], lv. denied 27 N.Y.3d 1070, 38 N.Y.S.3d 841, 60 N.E.3d 1207 [2016] ; see generally People v. Burrell, 236 A.D.2d 240, 242, 653 N.Y.S.2d 565 [1997] ).

However, as for defendant's convictions of criminal possession of a weapon in the second degree, the conclusion that defendant was an accessory to Anderson or Bost in their unlawful possession of weapons is against the weight of the evidence (see Penal Law §§ 20.00, 265.03[1][b] ; [3] ). There was no proof presented during the trial that defendant ever personally possessed one of the handguns or in any way encouraged² or intentionally aided Anderson or Bost in their possession of the handguns (see People v. Skinner, 190 A.D.2d 761, 761–762, 593 N.Y.S.2d 293 [1993] ; People v. Rayside, 187 A.D.2d 680, 681, 590 N.Y.S.2d 521 [1992], lv. denied 81 N.Y.2d 845, 595 N.Y.S.2d 745, 611 N.E.2d 784 [1993] ; compare People v. Gangar, 79 A.D.3d 1262, 1263, ...