People v. Wilborn

• Decision Date: 01 August 2018
• Docket Number: 2016–06177,Ind. No. 15–00367
• Parties: The PEOPLE, etc., respondent, v. Octavious D. WILBORN, appellant.
• Court: New York Supreme Court — Appellate Division

164 A.D.3d 530
83 N.Y.S.3d 98

The PEOPLE, etc., respondent,
v.
Octavious D. WILBORN, appellant.

2016–06177
Ind. No. 15–00367

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

Submitted—April 30, 2018
August 1, 2018

83 N.Y.S.3d 99

Philip H. Schnabel, Chester, NY, for appellant, and appellant pro se.

David M. Hoovler, District Attorney, Middletown, N.Y. (Nicholas D. Mangold of counsel), for respondent.

RUTH C. BALKIN, J.P., ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Orange County

83 N.Y.S.3d 100

(Nicholas DeRosa, J.), rendered May 26, 2016, convicting him of burglary in the second degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, without a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

The defendant was convicted of two counts of burglary in the second degree based on incidents that occurred in December 2014 and January 2015.

The defendant failed to preserve for appellate review his contention regarding service of a late alibi notice (see CPL 470.05[2] ; see also People v. Irizarry, 298 A.D.2d 600, 748 N.Y.S.2d 689 ; People v. Bhoje, 275 A.D.2d 419, 712 N.Y.S.2d 876 ). In any event, the defendant did not establish a basis for service of a late alibi notice (see CPL 250.20[1] ; People v. Wahhab, 84 A.D.3d 982, 984, 922 N.Y.S.2d 539 ; People v. Delacruz, 13 A.D.3d 642, 786 N.Y.S.2d 321 ). Contrary to the defendant's contention, the failure of trial counsel to file a timely alibi notice or request leave to file a late alibi notice did not deny the defendant the effective assistance of counsel (see People v. Coleman, 37 A.D.3d 489, 490, 829 N.Y.S.2d 200 ; see also People v. Ennis, 11 N.Y.3d 403, 415, 872 N.Y.S.2d 364, 900 N.E.2d 915 ).

The defendant's contention that the County Court should have suppressed evidence obtained from an examination of his cell phone is without merit. The search warrant application, which was submitted with the defendant's omnibus motion papers, established probable cause for the search and seizure of the cell phone (see People v. Polancobatista, 155 A.D.3d 1064, 1065, 65 N.Y.S.3d 458 ; People v. Wahhab, 84 A.D.3d at 983, 922 N.Y.S.2d 539 ).

The defendant failed to request that the County Court submit to the jury the count of criminal possession of stolen property as a purported lesser-included offense of burglary in the second degree. Therefore, he failed to preserve for appellate review the contention that the purported lesser-included offense should have been submitted to the jury (see CPL 470.05[2] ; People v. Borrello, 52 N.Y.2d 952, 953, 437 N.Y.S.2d 965, 419 N.E.2d 868 ; People v. Young, 74 A.D.3d 1374, 1375, 903 N.Y.S.2d 256 ). In any event, criminal possession of stolen property is not a lesser-included offense of burglary in the second degree, because it is possible to commit the crime of burglary in the second degree without concomitantly committing the crime of criminal possession of stolen property. The crimes of criminal possession of stolen property in the first through fifth degrees all require the element of...