People v. Standsblack

• Decision Date: 08 June 2018
• Docket Number: KA 15–00932,596
• Citation: 162 A.D.3d 1523,79 N.Y.S.3d 420
• Parties: The PEOPLE of the State of New York, Respondent, v. Saul D. STANDSBLACK, Defendant–Appellant. (Appeal No. 1.)
• Court: New York Supreme Court — Appellate Division

162 A.D.3d 1523
79 N.Y.S.3d 420

The PEOPLE of the State of New York, Respondent,
v.
Saul D. STANDSBLACK, Defendant–Appellant.

(Appeal No. 1.)

596
KA 15–00932

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

Entered: June 8, 2018

79 N.Y.S.3d 422

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (CAITLIN M. CONNELLY OF COUNSEL), FOR DEFENDANT–APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (SHIRLEY A. GORMAN OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., CARNI, LINDLEY, AND CURRAN, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the Genesee County Court ( Robert C. Noonan, J.), rendered April 13, 2015. The judgment convicted defendant, upon a jury verdict, of burglary in the second degree.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon a jury verdict of burglary in the second degree ( Penal Law § 140.25[2] ). Defendant was sentenced by County Court as a persistent violent felony offender (§ 70.08[3][b] ). In appeal No. 2, defendant appeals from a subsequent order that summarily denied his motion pursuant to CPL 440.10 seeking to vacate a judgment convicting him upon his plea of guilty of sexual abuse in the first degree (§ 130.65[1] ). That judgment was considered by the court in establishing defendant's status as a persistent violent felony offender.

In the early morning hours of October 13, 2013, defendant entered the apartment that the complainant shared with her boyfriend and awakened her by touching her vagina. Earlier that evening, defendant had been drinking at a party in the backyard

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outside the apartment, where he engaged the complainant in a sexually charged conversation. When the party dissipated, defendant accompanied the boyfriend and others to a bar in a neighboring town, where they continued drinking. At some point, defendant left the bar by himself and walked back to the apartment, where the complainant was sleeping alone. After defendant touched her vagina, the complainant expressed her disapproval, fled from the apartment, and attempted to contact her boyfriend's cell phone while standing outside in the cold. Meanwhile, defendant fell asleep on the couch. The boyfriend eventually returned from the bar, awakened defendant, and called the police. Defendant apologized and fled before the police arrived. Thereafter, he was indicted on, and convicted of, one count of burglary in the second degree, resulting in the judgment in appeal No. 1.

Defendant contends in appeal No. 1 that the court's Sandoval compromise was an abuse of discretion. The court limited cross-examination with respect to defendant's prior conviction of sexual abuse in the first degree to the fact of conviction only, but it permitted cross-examination about the facts and circumstances of, inter alia, his prior conviction of manslaughter in the first degree. Contrary to the People's assertion, defendant preserved his contention for our review in part. Before trial, he requested that the court limit cross-examination with respect to the manslaughter conviction to the fact of conviction only on the grounds that it was more than 20 years old and that the underlying facts were unduly prejudicial to him. The court rejected that argument in making its ultimate Sandoval ruling, and defendant objected to that ruling, thus preserving that part of his contention for our review (cf. People v. Taylor, 148 A.D.3d 1607, 1608, 50 N.Y.S.3d 217 [4th Dept. 2017] ; People v. Kelly, 134 A.D.3d 1571, 1572, 23 N.Y.S.3d 512 [4th Dept. 2015], lv denied 27 N.Y.3d 1070, 38 N.Y.S.3d 841, 60 N.E.3d 1207 [2016] ). Defendant otherwise failed to preserve his contention for our review (see CPL 470.05[2] ; see generally People v. Jackson, 29 N.Y.3d 18, 23, 52 N.Y.S.3d 63, 74 N.E.3d 302 [2017] ). In any event, the contention lacks merit. "[T]he court's Sandoval compromise, in which it limited questioning on defendant's prior conviction[ ] for [sexual abuse] to whether [he] had been convicted of a felony ..., ‘reflects a proper exercise of the court's discretion’ " ( People v. Stevens, 109 A.D.3d 1204, 1205, 971 N.Y.S.2d 637 [4th Dept. 2013], lv denied 23 N.Y.3d 1043, 993 N.Y.S.2d 256, 17 N.E.3d 511 [2014] ; see People v. Butler, 140 A.D.3d 1610, 1613, 33 N.Y.S.3d 602 [4th Dept. 2016], lv denied 28 N.Y.3d 969, 43 N.Y.S.3d 257, 66 N.E.3d 3 [2016] ). Additionally, the court did not abuse its discretion in "permitting specific questioning as to defendant's [manslaughter] conviction[ ], even though [it was] remote in time" ( Stevens, 109 A.D.3d at 1205, 971 N.Y.S.2d 637 ).

Defendant further contends that the conviction is not based on legally sufficient evidence. More particularly, he contends that the evidence is legally insufficient to establish that he knowingly entered or remained unlawfully in the apartment and, further, to establish that he entered the apartment with the intent to commit the crime of sexual abuse in the third degree ( Penal Law § 130.55 ), i.e., the crime underlying the burglary charge. As a preliminary matter, with respect to his knowledge of the lawfulness of the entry, defendant failed to preserve his contention for our review inasmuch as his motion for a trial order of dismissal was not " ‘specifically directed’ " at the alleged

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error ( People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ; see People v. Womack, 151 A.D.3d 1852, 1853, 57 N.Y.S.3d 603 [4th Dept. 2017], lv denied 29 N.Y.3d 1135, 64 N.Y.S.3d 686, 86 N.E.3d 578 [2017] ). In any event, we conclude that it lacks merit. With respect to intent, we note that the jury may infer a defendant's intent to commit a crime from the circumstances of the entry and the defendant's actions when confronted (see People v. Pendarvis, 143 A.D.3d 1275, 1275, 39 N.Y.S.3d 348 [4th Dept. 2016], lv denied 28 N.Y.3d 1149, 52 N.Y.S.3d 300, 74 N.E.3d 685 [2017] ; People v. Sterina, 108 A.D.3d 1088, 1090, 968 N.Y.S.2d 296 [4th Dept. 2013] ). Here, the jury could infer from the circumstances of the entry that defendant unlawfully entered the apartment with the intent to commit the crime of sexual abuse in the third degree. Viewing the evidence in the light most favorable to the People, " ‘there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt’ " ( People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). Viewing the evidence in light of the elements of the crime of burglary in the second degree as charged to the jury (see id. ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).

Defendant contends that he was denied effective assistance of counsel because his attorney failed to request that the court charge the jury as to the lesser included offense of criminal trespass in the second degree ( Penal Law § 140.15[1] ). We reject that contention. " ‘[I]t is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations’ for counsel's alleged shortcomings" ( People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ), and we conclude that defendant has not met that burden here. "[T]he decision to request or consent to the submission of a lesser included offense is often based on strategic considerations, taking into account a myriad of factors, including the strength of the People's case" ( People v. McGee, 20 N.Y.3d 513, 519, 964 N.Y.S.2d 73, 986 N.E.2d 907 [2013] ). "[W]here the proof against a defendant is relatively weak and the charges very serious, a defendant may elect not to request a lesser included offense so that the jury is forced to choose between conviction of a serious crime or an acquittal, with the hope that the jury will be sympathetic to defendant and uncomfortable convicting on scant evidence" ( id. at 520, 964 N.Y.S.2d 73, 986 N.E.2d 907 ). Here, the proof against defendant consisted of the conflicting testimony of...