Opinion
2014-06-12
The PEOPLE of the State of New York, Respondent, v. Christopher L. ANDERSON, Appellant.
David E. Woodin, Catskill, for appellant. Paul Czajka, District Attorney, Hudson (H. Neal Conolly of counsel), for respondent.
David E. Woodin, Catskill, for appellant. Paul Czajka, District Attorney, Hudson (H. Neal Conolly of counsel), for respondent.
Before: STEIN, J.P., McCARTHY, ROSE and EGAN JR., JJ.
STEIN, J.P.
Appeal from a judgment of the County Court of Columbia County (Nichols, J.), rendered August 15, 2012, upon a verdict convicting defendant of the crimes of robbery in the first degree, burglary in the first degree (four counts), burglary in the second degree, criminal possession of a weapon in the second degree (two counts) and criminal possession of a weapon in the third degree.
Over the course of three days in January 2012, there were three separate home invasions in Columbia County, the last of which occurred during the early morning hours of January 12 when David Chrapowitzky and Barbara Chrapowitzky woke up in their home and saw intruders. After the intruders left, the Chrapowitzkys called 911, described them as two males, one of whom was wearing a mask and the other a bandana across his face, and both wearing black hooded sweatshirts. Both of the men were armed and, after they exited the house, the Chrapowitzkys heard a vehicle leaving. Donald Krapf, a sergeant with the Columbia County Sheriff's Department, responded to the 911 call and, while traveling to the residence, observed a suspicious vehicle. Krapf kept the vehicle in his view for a few minutes and was eventually able to see that defendant—who was driving—was wearing a black hooded sweatshirt. Krapf also observed the vehicle turn without a directional signal being employed and effectuated a traffic stop of the vehicle, which was occupied by defendant and four others, including Jeremy Bost and Joshua Spencer. Bost was asked to exit the vehicle and a pat down revealed two guns in the waistband of his pants. Physical evidence linking defendant to the three burglaries was found in the vehicle and, later, in defendant's residence.
Defendant, Bost and Spencer were arrested and were each charged in an indictment with burglary in the first degree (four counts), criminal possession of a weapon in the second degree (two counts), criminal possession of weapon in the third degree, robbery in the first degree and burglary in the second degree. Following a suppression hearing, County Court determined that Krapf had probable cause to stop defendant's vehicle and refused to suppress the evidence seized as a result thereof. County Court subsequently severed defendant's trial from his codefendants' trial and defendant was convicted by a jury as charged. Defendant was sentenced, as a second violent felony offender, to an aggregate prison term of 80 years, to be followed by five years of postrelease supervision. Defendant now appeals, and we affirm.
Initially, we reject defendant's claim that County Court failed to acquire personal jurisdiction over him because he was not arraigned in accordance with the statutory requirements ( seeCPL 210.15[1] ). Defendant was present at the arraignment, during which his counsel waived a formal reading of the charges, acknowledged receipt of the indictment and entered a plea of not guilty on each and every count therein. Thus, the statutory requirements were satisfied ( seeCPL 210.15; People v. Oakley, 112 A.D.3d 1064, 1064, 976 N.Y.S.2d 619 [2013],lv. denied22 N.Y.3d 1140, 983 N.Y.S.2d 499, 6 N.E.3d 618 [2014];People v. Buckner, 274 A.D.2d 832, 833, 711 N.Y.S.2d 861 [2000],lv. denied95 N.Y.2d 904, 716 N.Y.S.2d 645, 739 N.E.2d 1150 [2000] ).
We also find no merit to defendant's contention that County Court should have suppressed the evidence derived from the traffic stop. Probable cause to believe that a person has violated a provision of the Vehicle and Traffic Law provides an “ ‘objectively reasonable basis' ” for the stop of a vehicle ( People v. Brock, 107 A.D.3d 1025, 1026, 968 N.Y.S.2d 624 [2013],lv. denied21 N.Y.3d 1072, 974 N.Y.S.2d 321, 997 N.E.2d 146 [2013], quoting People v. Pealer, 20 N.Y.3d 447, 457 n. 2, 962 N.Y.S.2d 592, 985 N.E.2d 903 [2013],cert. denied––– U.S. ––––, 134 S.Ct. 105, 187 L.Ed.2d 77 [2013];see People v. Thompson, 106 A.D.3d 1134, 1135, 963 N.Y.S.2d 780 [2013];People v. McLean, 99 A.D.3d 1111, 1111–1112, 952 N.Y.S.2d 672 [2012],lv. denied20 N.Y.3d 1013, 960 N.Y.S.2d 356, 984 N.E.2d 331 [2013];People v. Viele, 90 A.D.3d 1238, 1239, 935 N.Y.S.2d 171 [2011],lv. denied19 N.Y.3d 868, 947 N.Y.S.2d 417, 970 N.E.2d 440 [2012];People v. Green, 80 A.D.3d 1004, 1004–1005, 915 N.Y.S.2d 371 [2011] ). Here, Krapf testified at the probable cause hearing that, as he was responding to the 911 call, he observed defendant's vehicle fail to signal when it made a left-hand turn ( seeVehicle and Traffic Law § 1163[d] ). County Court assessed that testimony as credible, and the objective reasonableness of the stop was not negated by any subjective intention that Krapf might have had in connection with his desire to investigate the possibility that the occupants of the vehicle were involved in that evening's burglary ( see People v. McLean, 99 A.D.3d at 1112, 952 N.Y.S.2d 672;People v. Viele, 90 A.D.3d at 1239, 935 N.Y.S.2d 171). Krapf also observed the vehicle—which was the only one on the road—in close geographical and temporal proximity to the scene of the reported crime, as well as the fact that defendant was wearing clothing that matched the description of the perpetrators and that another occupant in the car was moving suspiciously. Based on this testimony, and according deference to County Court's credibility assessments, we discern no basis to disturb that court's finding that there was probable cause to stop defendant's vehicle.
Krapf also testified that his partner issued uniform traffic tickets to defendant. While defendant points to the absence of such tickets from the record, we note that, even if no tickets had been issued, it would not have “render[ed] the otherwise lawful traffic stop illegal” ( People v. Ross, 106 A.D.3d 1194, 1195, 964 N.Y.S.2d 740 [2013],lv. denied22 N.Y.3d 1090, 981 N.Y.S.2d 676, 4 N.E.3d 978 [2014] ).
We turn next to defendant's argument that the jury's verdict was against the weight of the evidence because the People failed to prove beyond a reasonable doubt his identity as a perpetrator in the home invasions. Shortly after the burglary at the Chrapowitzky home, defendant was seen driving a vehicle in a nearby location wearing clothing that matched the description of the perpetrator. Certain items linked to the three burglaries were found in the vehicle and Bost had two guns in his waistband. Also, the Chrapowitzkys and Edrick King, one of the victims of the first burglary, identified those guns as the weapons that were used by the perpetrators, and Lucas Samascott, the victim of the second burglary, identified items found in the vehicle and at defendant's residence as items that had been taken from his home. Additionally, the Chrapowitzkys were able to make an in-court identification of defendant as one of the two perpetrators, and David Chrapowitzky identified the mask found in defendant's vehicle as the mask worn by one of the intruders. Finally, King identified a black jacket that was later found in defendant's jail locker as the jacket that was worn by the shorter of the two intruders at his home.
Samascott was not home when the burglary occurred.
Catrina Lewis, who was in the vehicle with defendant, Bost and Spencer on all three occasions, testified that, each time, the vehicle stopped at a house, the three men got out of the vehicle and returned a short time later. Lewis also testified that during the first incident, the three men returned carrying a bag, which they later threw out of the window. That bag was recovered and the other victim of the first burglary identified it as a bag belonging to him that had been taken from his home. Shaeancye Anthony–Lewis, who was also in the car after the last home invasion, testified that she saw defendant hand a weapon to Bost. In addition, the People proffered evidence that both of the weapons recovered on Bost were operable, and that defendant had previously been convicted of a felony.
Although defendant challenges the credibility of Lewis and Anthony–Lewis, as well as the victims' descriptions of the perpetrators, the identification of the weapons and the in-court identification of defendant by the Chrapowitzkys, these issues were fully explored at trial and presented a credibility issue for the jury to resolve. Thus, while a different verdict would not have been unreasonable, when we view the evidence in a neutral light and defer to the jury's superior position to determine witness credibility, we are satisfied that the verdict as to each of the charges was in accord with the weight of the evidence ( see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007];People v. Perry, 116 A.D.3d 1253, 1255, 983 N.Y.S.2d 699 [2014];People v. Ferrer, 113 A.D.3d 964, 965, 978 N.Y.S.2d 476 [2014];People v. Woodrow, 91 A.D.3d 1188, 1190, 936 N.Y.S.2d 778 [2012],lv. denied18 N.Y.3d 999, 945 N.Y.S.2d 654, 968 N.E.2d 1010 [2012] ).
We are also unpersuaded by defendant's claim that reversal is required due to a variety of trial errors. Initially, defendant contends that the People's failure to turn over the video-recorded questioning of King, as well as handwritten notes of that questioning taken by the investigator, constituted a Brady/Rosario violation that warranted dismissal of the charges relating to King. The District Attorney revealed that he had just learned of the existence of the investigator's notes and the video recording at the conclusion of King's trial testimony. After viewing these items outside the presence of the jury, defendant's counsel objected to the late disclosure and requested, as a sanction, that the three relevant counts of the indictment be dismissed. Defendant's counsel declined County Court's offers to amend his opening statement and to present the video recording to the jury, but did reopen his cross-examination of King to question him regarding the inconsistencies between his pretrial statements and his trial testimony concerning various aspects of his description of the perpetrators.
While we agree that the People's failure to timely disclose the aforementioned evidence constituted a Brady and/or Rosario violation, defendant failed to show “a reasonable possibility that the result at trial would have been different if the materials had been timely disclosed” ( People v. Williams, 50 A.D.3d 1177, 1180, 854 N.Y.S.2d 586 [2008];seeCPL 240.45[1][a]; People v. Dawson, 110 A.D.3d 1350, 1352, 973 N.Y.S.2d 850 [2013] ), particularly considering the remedies made available to defendant by County Court. Under these circumstances, County Court's refusal to sanction the People by dismissing those counts in the indictment was a provident exercise of its discretion ( see People v. Williams, 7 N.Y.3d 15, 19, 816 N.Y.S.2d 739, 849 N.E.2d 962 [2006];People v. Jenkins, 98 N.Y.2d 280, 284, 746 N.Y.S.2d 651, 774 N.E.2d 716 [2002] ).
Nor did County Court err by precluding defendant from calling as a witness the investigator who questioned King. Following the close of the People's case, defendant's counsel disclosed that he intended to call the investigator regarding the statements that King made to him. Although defendant contends that the investigator's testimony was offered to impeach King's testimony with regard to his description of the perpetrators of the crime, King admitted on cross-examination that he told the investigator that he had thought one of the men in his residence had a Spanish accent and might have been a person he knew named Fernando. Thus, to this extent, King's testimony was not inconsistent with the offer of proof regarding the investigator's testimony ( see People v. Hamm, 96 A.D.3d 1482, 1483, 946 N.Y.S.2d 745 [2012],affd. 21 N.Y.3d 708, 977 N.Y.S.2d 672, 999 N.E.2d 1117 [2013] ). Moreover, to the extent that King's trial testimony regarding his description of the height of the perpetrators differed from what he told the investigator, defendant's counsel was able to challenge the alleged inconsistencies of King's description through the reopened cross-examination and declined County Court's offer to play the video recording of King's interview with the investigator for the jury. Under these circumstances, we discern no abuse of the court's discretion in precluding the investigator's testimony.
Contrary to defendant's assertion, we also conclude that County Court properly denied his request to charge the jury that Lewis and Anthony–Lewis were accomplices whose testimony required corroboration connecting defendant to the commission of the crimes ( seeCPL 60.22[1]; compare People v. Medeiros, 116 A.D.3d 1096, 1097–1098, 983 N.Y.S.2d 329 [2014] ). For the purposes of the corroboration requirement, an accomplice is defined as a person who “may reasonably be considered to have participated in ... [t]he offense charged; or ... [a]n offense based upon the same or some of the same facts or conduct which constitute the offense charged” (CPL 60.22[2]; see People v. Sage, 23 N.Y.3d 16, 22, ––– N.Y.S.2d ––––, ––– N.E.3d ––––, 2014 N.Y. Slip Op. 02214, *5, 2014 WL 1280443 [2014];People v. Medeiros, 116 A.D.3d at 1097–1098, 983 N.Y.S.2d 329). “Thus, to be an accomplice for corroboration purposes, the witness ‘must somehow be criminally implicated and potentially subject to prosecution for the conduct or factual transaction related to the crimes for which the defendant is on trial’ ” ( People v. Medeiros, 116 A.D.3d at 1098, 983 N.Y.S.2d 329, quoting People v. Adams, 307 A.D.2d 475, 476, 763 N.Y.S.2d 347 [2003],lv. denied1 N.Y.3d 566, 775 N.Y.S.2d 784, 807 N.E.2d 897 [2003] ).
Notwithstanding the fact that both Lewis and Anthony–Lewis were arrested and charged with conspiracy in the fourth degree, when we consider the evidence presented at trial with respect to the extent of their involvement ( see People v. Sage, 23 N.Y.3d at 23, ––– N.Y.S.2d ––––, –––N.E.3d ––––, 2014 N.Y. Slip Op. 02214 at *6, 2014 WL 1280443), neither met the definition of an accomplice ( compare People v. Shelton, 98 A.D.3d 988, 990–991, 951 N.Y.S.2d 69 [2012] ). Lewis's testimony reveals that her involvement was limited to her presence in the vehicle when defendant, Bost and Spencer traveled to the victims' residences and, similarly, Anthony–Lewis was merely present in the vehicle when the last home invasion occurred. Their presence in the vehicle, alone, was insufficient to qualify them as accomplices ( see People v. Tucker, 72 N.Y.2d 849, 850, 532 N.Y.S.2d 91, 527 N.E.2d 1227 [1988];compare People v. Sweet, 78 N.Y.2d 263, 265–266, 573 N.Y.S.2d 438, 577 N.E.2d 1030 [1991] ), and we find no error in County Court's refusal to charge the jury as such.
There is nothing in the record indicating the disposition of these charges.
In any event, even if the evidence adduced at trial created a factual question as to Lewis's and Anthony–Lewis's participation requiring County Court to provide the jury with an accomplice-in-fact instruction, the failure to do so would have been harmless error, as there is ample evidence corroborating their testimony which “tends to connect ... defendant with the commission of the crime[s] in such a way as may reasonably satisfy the jury that [they were] telling the truth” ( People v. Reome, 15 N.Y.3d 188, 192, 906 N.Y.S.2d 788, 933 N.E.2d 186 [2010];see People v. Reed, 115 A.D.3d 1334, 1336, 982 N.Y.S.2d 670 [2014];compare People v. Sage, 23 N.Y.3d at 26, ––– N.Y.S.2d ––––, ––– N.E.3d ––––, 2014 N.Y. Slip Op. 02214 at *9, 2014 WL 1280443). Among other things, defendant's presence in the vehicle, the recovery of the guns from Bost's waistband, the identification of defendant's jacket by King, the in-court identification of defendant by the Chrapowitzkys, David Chrapowitzky's identification of the mask found in defendant's vehicle, and the recovery of the stolen items from defendant's residence sufficiently corroborated the testimony of Lewis and Anthony–Lewis ( see People v. Jones, 111 A.D.3d 1148, 1150, 975 N.Y.S.2d 484 [2013] ).
To the extent not specially addressed herein, defendant's remaining contentions have been considered and are unavailing.
ORDERED that the judgment is affirmed.