People v. Sturdevant

• Decision Date: 10 June 2010
• Citation: 74 A.D.3d 1491,904 N.Y.S.2d 777
• Parties: The PEOPLE of the State of New York, Respondent, v. Terry L. STURDEVANT Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

904 N.Y.S.2d 777

74 A.D.3d 1491

The PEOPLE of the State of New York, Respondent,

v.Terry L. STURDEVANT Jr., Appellant.

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

June 10, 2010.

Michael T. Snyder, Apalachin, for appellant.

Joseph A. McBride, District Attorney, Norwich (Michael J. Genute of counsel), for respondent.

Before: SPAIN, J.P., ROSE, LAHTINEN, GARRY and EGAN JR., JJ.

GARRY, J.

Appeal from a judgment of the Supreme Court (Dowd, J.), rendered January 30, 2009 in Chenango County, upon a verdict convicting defendant of the crimes of burglary in the second degree and petit larceny.

In November 2007, a police officer, responding to a telephone call from a neighbor reporting a possible burglary at the victim's residence, saw defendant walking nearby. Upon seeing the officer, defendant ran and was apprehended after a brief pursuit. The victim's property was discovered in the immediate vicinity. Defendant was indicted for burglary in the second degree and petit larceny. His motion to suppress his statements to the police was denied after a Huntley hearing. He was convicted as charged following a jury trial and sentenced to a prison term of eight years and five years of postrelease supervision. Defendant appeals.

Supreme Court properly admitted defendant's statements to the police into evidence. In January 2008, the People filed a notice pursuant to CPL 710.30 indicating that statements intendedto be used at trial were contained in an attached police report; the report had also been furnished to defendant at his arraignment. A second, supplementary notice was filed in October 2008, directly quoting defendant's statements as they appeared in the police report. Thus, defendant was furnished with notice that adequately set out the sum and substance of his statements and permitted him to intelligently identify them ( see People v. Lopez, 84 N.Y.2d 425, 428, 618 N.Y.S.2d 879, 643 N.E.2d 501 [1994]; People v. Henderson, 4 A.D.3d 616, 618, 772 N.Y.S.2d 120 [2004], lv. denied 2 N.Y.3d 800, 781 N.Y.S.2d 299, 814 N.E.2d 471 [2004] ). Further, as the purpose of the notice requirement is to enable defendant to challenge the voluntariness of his statements before trial ( see People v. Borthwick, 51 A.D.3d 1211, 1215, 857 N.Y.S.2d 358 [2008], lv. denied 11 N.Y.3d 734, 864 N.Y.S.2d 393, 894 N.E.2d 657 [2008] ), defendant waived his objection to the adequacy of the notice by making his suppression motion ( see People v. Trimmer, 30 A.D.3d 820, 822, 817 N.Y.S.2d 727 [2006], lv. denied 7 N.Y.3d 818, 822 N.Y.S.2d 493, 855 N.E.2d 809 [2006]; People v. Merrill, 226 A.D.2d 1045, 1045, 642 N.Y.S.2d 126 [1996], lv. denied 88 N.Y.2d 1022, 651 N.Y.S.2d 21, 673 N.E.2d 1248 [1996] ). Defendant's claim on appeal that the statements should have been suppressed because no probable cause for his arrest was shown was not sufficiently addressed in his pretrial motion, and is thus unpreserved, and he does not challenge the court's determination that they were made voluntarily.

Defendant next contends that his burglary conviction was based on legally insufficient evidence and was against the weight of the evidence because the People did not prove that he entered the victim's residence with the intent to commit a crime therein ( see Penal Law § 140.25). "[I]ntent may be inferred from the circumstances of the intruder's unlawful entry, unexplained presence on the premises, and actions and statements when confronted by the police or the property owner" ( People v. Vasquez, 71 A.D.3d 1179, 1180, 896 N.Y.S.2d 239 [2010] [internal quotation marks and citations omitted] ). Here, the neighbor who called the police testified that he saw defendant standing at the victim's door and later saw him leaving the residence. The victim testified that she did not know defendant and had not given him permission to be there. While defendant claimed that he did not remember going to the victim's residence, the arresting officer testified that defendant had stated he was on the victim's property to look for someone but could not remember the person's name. Defendant further testified that, when apprehended, he was looking for bottles and cans to return for cigarette money; however, he had no bottles, cans, or collection bag, and he identified a pack of cigarettes lying on the ground as belonging to him. Finally, police found items belonging to the victim in the bushes nearby; the day had been rainy but these items were relatively dry. Viewing this evidence in the light most favorable to the People, there is a valid line of reasoning and permissible inferences that could lead a jury toconclude that defendant entered the victim's home with intent to commit a crime therein ( see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]; People v. Rodriguez, 68 A.D.3d 1351, 1352, 890 N.Y.S.2d 735 [2009], lv. denied 14 N.Y.3d 804, 899 N.Y.S.2d 139, 925 N.E.2d 943 [2010] ). Evaluating the evidence in a neutral light and with due deference to the jury's opportunityto assess witness credibility, the conviction was not against the weight of the evidence ( see People v. Caston, 60 A.D.3d 1147, 1150, 874 N.Y.S.2d 623 [2009]; People v. Griffin, 26 A.D.3d 594, 596, 809 N.Y.S.2d 279 [2006], lv. denied 7 N.Y.3d 756, 819 N.Y.S.2d 882, 853 N.E.2d 253 [2006] ).

Defendant's request for a jury charge on the lesser included offense of criminal trespass was properly denied. There was no reasonable evidence "suggesting [a] noncriminal purpose for [his] entry" into the victim's residence ( People v. Martinez, 9 A.D.3d 679, 681, 779 N.Y.S.2d 821 [2004], lv. denied 3 N.Y.3d 709, 785 N.Y.S.2d 37, 818 N.E.2d 679 [2004] ) and, thus, no reasonable view of the evidence supporting a conclusion that he "knowingly enter[ed] or remain[ed] unlawfully in a dwelling" (Penal Law § 140.15), but did not "inten[d] to commit a crime therein" (Penal Law § 140.25; see People v. Van Norstrand, 85 N.Y.2d 131, 135, 623 N.Y.S.2d 767, 647 N.E.2d 1275 [1995]; People v. Barringer, 54 A.D.3d 442, 444, 862 N.Y.S.2d 214 [2008], lv. denied 11 N.Y.3d 830, 868 N.Y.S.2d 604, 897 N.E.2d 1088 [2008] ). Defendant also contends that the request for a jury charge on the defense of intoxication was improperly denied. He testified that he and two other persons shared a liter and a half of vodka, used marihuana, and "popped some pills" on the morning of the incident. To support such a charge requires "[m]ore than a bare assertion by a defendant that he was intoxicated" ( People v. Gaines, 83 N.Y.2d 925, 927, 615 N.Y.S.2d 309, 638 N.E.2d 954 [1994] ) or that he used alcohol or drugs before committing an offense. The evidence must be sufficient " 'for a reasonable person to entertain a doubt as to the element of intent' " on the basis of intoxication ( People v. Rodriguez, 76 N.Y.2d 918, 920, 563 N.Y.S.2d 48, 564 N.E.2d 658 [1990], quoting People v. Perry, 61 N.Y.2d 849, 850, 473 N.Y.S.2d 966, 462 N.E.2d 143 [1984] ). Defendant did not indicate how much alcohol or marihuana he consumed or what kind of pills he took and, other than describing himself as "high" and "a little intoxicated," he offered no details as to the impact of these substances on his behavior and mental state ( see People v. Gaines, 83 N.Y.2d at 927, 615 N.Y.S.2d 309, 638 N.E.2d 954). The only other evidence of his intoxication was an entry on the police report that he was "impaired" when he was arrested. The officer who made the entry testified that he could not remember why he had done so and that defendant was coherent in speaking with police and answering questions. Further, although defendant claimed that he could not recall entering the victim's property, he remembered why he had gone to the area and described his encounter with the police in detail. In these circumstances, an instruction as to his intoxication was not required ( see People v. Park, 12 A.D.3d 942, 943, 785 N.Y.S.2d 180 [2004];People v. Maxwell, 260 A.D.2d 653, 654, 688 N.Y.S.2d 262, lv. denied 93 N.Y.2d 1004, 695 N.Y.S.2d 750, 717 N.E.2d 1087 [1999] ).

Supreme Court did not abuse its discretion in ruling after a Sandoval hearing that the People could cross-examine defendant about prior convictions for petit larceny and attempted petit larceny ( see People v. Hayes, 97 N.Y.2d 203, 207-208, 738 N.Y.S.2d 663, 764 N.E.2d 963 [2002]; People v. Jones, 70 A.D.3d 1253, 1254, 895 N.Y.S.2d 591 [2010] ). Although defendant's criminal history included other offenses pertinent to his veracity, the court appropriately limited the inquiry to three recent convictions; the People's relatively brief cross-examination actually addressed only two. The inquiry was not precluded by the similarity of the convictions to thecharged offenses ( see People v. Mitchell, 57 A.D.3d 1308, 1311, 871 N.Y.S.2d 445 [2008] ), since " 'proof of willingness to steal has been specifically recognized as very material proof of lack of credibility' " ( People v. Willis, 282 A.D.2d 882, 883, 725 N.Y.S.2d 415 [2001], lv. denied 96 N.Y.2d 869, 730 N.Y.S.2d 44, 754 N.E.2d 1127 [2001], quoting People v. Moore, 82 A.D.2d 972, 972, 440 N.Y.S.2d 418 [1981] ). As the only witness on his own behalf, defendant's credibility was of particular importance to the jury ( see People v. Willis, 282 A.D.2d at 883, 725 N.Y.S.2d 415). Finally, although no limiting instruction was...