People v. Walton

• Citation: 214 A.D.2d 805,625 N.Y.S.2d 313
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert D. WALTON Sr., Appellant.
• Decision Date: 13 April 1995
• Court: New York Supreme Court — Appellate Division

Page 313

625 N.Y.S.2d 313

214 A.D.2d 805

The PEOPLE of the State of New York, Respondent, v. Robert D. WALTON Sr., Appellant.

Supreme Court, Appellate Division,

Third Department.

April 13, 1995.

Drew A. Lochte, Schenectady, for appellant.

Robert M. Carney, Dist. Atty., Schenectady, for respondent.

Before MIKOLL, J.P., and WHITE, CASEY, PETERS and SPAIN, JJ.

PETERS, Justice.

Appeals (1) from a judgment of the County Court of Schenectady County (Harrigan, J.), rendered February 26, 1991, upon a verdict convicting defendant of the crime of burglary in the third degree, and (2) from an order of said court, entered March 2, 1992, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction.

Defendant was arrested when he was found on the premises of a store owned by Strong Stone in the early morning hours of May 4, 1989. Police Officers Jeffrey Jackson and Willard Stearns, responding to a tenant's complaint of noise in the store, noticed no lights on in the store when they arrived. In approaching the front door, the officers noticed that the door was open approximately two inches and was propped open by a doormat. Defendant was found silently standing inside about six feet from where Jackson was standing, holding a flashlight in one hand. Stearns conducted a pat-down search of defendant and discovered a key to the store in defendant's pocket. Through investigation it was determined that Marilyn Petersen had been given a key to Stone's store to watch it when he was away. This key was later determined to be the key found in defendant's pocket. It was further determined that Petersen, defendant and another individual had been out drinking together the night before and that Petersen became highly intoxicated. Testimony revealed that Petersen had earlier told defendant about her arrangement with Stone and had showed him the key to the store. Defendant was brought to the police station and charged with burglary in the third degree. Following a jury trial, defendant was found guilty of the charge and was sentenced as a persistent felony offender. Defendant appeals.

Defendant first contends that County Court incorrectly determined that the People were ready for trial within six months of the commencement of the action as required by CPL 30.30(1)(a). We disagree. It is clear that the People must declare their readiness for trial within six months of the commencement of a criminal action where, as here, defendant is accused of a felony (see, CPL 30.30[1][a]. In computing the time of readiness, certain time periods are permissibly excluded (see, CPL 30.30[4]. In the instant case, it is uncontested that a plea offer was proffered to defendant on October 30, 1989 and that defense counsel agreed, for purposes of CPL 30.30, that a one-week extension would be granted for defendant to consider the plea. We find that the People have affirmatively established that defense counsel waived the running of CPL 30.30 for one week and that, in accordance with such agreement, the indictment was not filed until November 6, 1989. Hence, such time was not properly chargeable to the People (see, People v. Merrick, 188 A.D.2d 764, 591 N.Y.S.2d 564, lv. denied 81 N.Y.2d 889, 597 N.Y.S.2d 951, 613 N.E.2d 983). Pursuant to CPL 30.30, the People now had until November 11, 1989 to announce their readiness for trial. On November 8, 1989, the People stated on the record that they were ready for trial and arraignment when, at such time, defense counsel again requested an adjournment until November 13, 1989 in order to contact defendant. On November 13, 1989, defendant failed to appear and a bench warrant was issued. At such time, the People again announced their readiness for trial. County Court granted defense counsel a two-day adjournment to produce defendant for arraignment. On November 15, 1989, defendant was arraigned.

We find that the delay of four days from November 11 to November 15, 1989 was occasioned by defense counsel's request for an adjournment and defendant's failure to appear. Therefore, we find such time to be properly excludible from speedy trial calculations (see, People v. Hughes, 136 A.D.2d 916, 525 N.Y.S.2d 88). The People's statement of readiness for trial at defendant's arraignment on November 15, 1989, with defendant present, was within the six-month limit. We accordingly dismiss defendant's contentions alleging a denial of his right to a speedy trial.

We find no merit to defendant's contention that the evidence adduced at trial was legally insufficient to establish that he entered the premises with knowledge that he had no license to do so or that he intended to commit a crime therein. In determining whether the People have met their burden on the issue of intent, the Court of Appeals has held that the court must determine whether, " 'considering the facts proved and the inferences that could reasonably be drawn therefrom, [the fact finder] could conclude that there was no reasonable doubt that the defendant' intended to commit the crimes charged" (People v. Barnes, 50 N.Y.2d 375, 381, 429 N.Y.S.2d 178, 406 N.E.2d 1071, quoting People v. Castillo, 47 N.Y.2d 270, 277, 417 N.Y.S.2d 915, 391 N.E.2d 997). Here, the trial testimony supports the inference that defendant entered the store with the knowledge that he had no license to do so. Strong testified that he did not know defendant and that he had never given him permission to be in the store after hours. Petersen also testified that she had not been given permission to enter the store after hours and that she neither gave the key to defendant nor asked him to retrieve anything on her behalf. Through this testimony, we find that the jury could have reasonably concluded that defendant entered the premises with knowledge that he had no license or privilege to do so.

We further find the evidence sufficient to support the conclusion that defendant intended to commit a crime once inside the store. Defendant was found in the store while the store was closed. When he entered, he did not turn on the lights and instead propped open the door and used a flashlight to see inside. Moreover, while defendant testified that he was inside the store to pick up shoes made for an individual named "Indian John", Stone testified that he never made any shoes for such person. Moreover, contrary to defendant's contention, Petersen testified that she never gave the key to defendant. Hence, the jury, considering the facts proved and the inferences that could be reasonably drawn therefrom, made credibility determinations with respect to conflicting testimony which we find to be reasonable. It further appropriately inferred, based upon the proof before it, that defendant entered the store with knowledge that he had no license to do so and that he intended to commit a crime therein.

As to defendant's claims of ineffective assistance of counsel, we find no merit. In reviewing claims of ineffective...