Opinion
771 KA 18-01804
12-23-2020
The PEOPLE of the State of New York, Respondent, v. Michael J. BEARD, Defendant-Appellant.
DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR DEFENDANT-APPELLANT. WEEDEN A. WETMORE, SPECIAL DISTRICT ATTORNEY, ELMIRA (SUSAN RIDER OF COUNSEL), FOR RESPONDENT.
DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR DEFENDANT-APPELLANT.
WEEDEN A. WETMORE, SPECIAL DISTRICT ATTORNEY, ELMIRA (SUSAN RIDER OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., NEMOYER, CURRAN, TROUTMAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice and on the law by reversing those parts convicting defendant of murder in the second degree and dismissing counts two and three of the indictment and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of murder in the first degree ( Penal Law § 125.27 [1] [a] [vi] ; [b]) and two counts of murder in the second degree (§ 125.25 [1], [3]).
Defendant's conviction arises from the killing of the wife of Thomas Clayton. On the evening the victim was killed, Clayton returned home from a late-night poker game and found his wife dead on the kitchen floor, having been beaten with a blunt instrument (see People v. Clayton , 175 A.D.3d 963, 963, 108 N.Y.S.3d 94 [4th Dept. 2019] ). The police learned that Clayton made a suspicious call to defendant during the poker game. They interviewed defendant, who led them to where the murder weapon had been discarded. The weapon had the victim's blood on it. Defendant then confessed that he killed the victim at Clayton's behest in exchange for a payment of $10,000. Defendant told the police that Clayton provided him with a house key, and the plan was for defendant to bludgeon the victim to death with a maul handle and then burn the house down in order to make the death look accidental. Defendant confessed that he went through with the murder, but panicked and fled before setting the fire. During his testimony at trial, defendant retracted portions of his confession, admitting only that Clayton offered him $10,000 to burn the house down. Defendant testified that, when he entered the house, he encountered the victim's lifeless body and a masked intruder, who handed defendant the murder weapon and ran away.
With respect to the count charging defendant with murder in the first degree, we reject defendant's contention that the verdict is against the weight of the evidence. Viewing the evidence in light of the elements of murder in the first degree as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), and according deference to the jury's credibility determinations (see People v. Romero , 7 N.Y.3d 633, 644, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] ), we conclude that the verdict is not against the weight of the evidence with respect to that crime (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). We agree with defendant, however, that count two of the indictment, charging him with intentional murder in the second degree ( Penal Law § 125.25 [1] ), must be dismissed as a lesser included count of murder in the first degree (see CPL 300.40 [3] [b] ; Clayton , 175 A.D.3d at 967 ). We therefore modify the judgment accordingly.
In light of that determination, defendant's related contention that County Court erred in failing to charge counts one and two of the indictment in the alternative is academic.
Defendant further contends that the evidence is legally insufficient to support his conviction on count three of the indictment, charging him with felony murder in the second degree ( Penal Law § 125.25 [3] ). Specifically, defendant contends that there is insufficient evidence that he committed the predicate felony of burglary because the People failed to establish that he knowingly entered or remained unlawfully on the premises (see § 140.20; People v. Dale , 224 A.D.2d 917, 917, 637 N.Y.S.2d 873 [4th Dept. 1995] ). Although defendant failed to preserve his contention for our review (see People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ), we exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ), and we agree with defendant. A person enters or remains in a building unlawfully when he or she is "not licensed or privileged to do so" ( Penal Law § 140.00 [5] ; see Dale , 224 A.D.2d at 917, 637 N.Y.S.2d 873 ). Where the defendant has the "permission of [an] owner, he [or she] has ‘license or privilege’ to enter or remain on the premises" ( Dale , 224 A.D.2d at 917, 637 N.Y.S.2d 873, quoting People v. Graves , 76 N.Y.2d 16, 20, 556 N.Y.S.2d 16, 555 N.E.2d 268 [1990] ; cf. People v. Glanda , 5 A.D.3d 945, 950, 774 N.Y.S.2d 576 [3d Dept. 2004], lv denied 3 N.Y.3d 640, 782 N.Y.S.2d 412, 816 N.E.2d 202 [2004], reconsideration denied 3 N.Y.3d 674, 784 N.Y.S.2d 13, 817 N.E.2d 831 [2004], cert denied 543 U.S. 1093, 125 S.Ct. 973, 160 L.Ed.2d 906 [2005] ). Here, it is undisputed that Clayton, an owner and occupant of the house, gave defendant permission to enter the house and a key to effect entry, and thus defendant did not enter the house unlawfully. Furthermore, "[t]he evidence failed to establish that defendant's license or privilege to be in the dwelling terminated, and therefore is legally insufficient to establish that defendant unlawfully remained therein" ( People v. Wright , 38 A.D.3d 1232, 1233, 834 N.Y.S.2d 908 [4th Dept. 2007], lv denied 9 N.Y.3d 853, 840 N.Y.S.2d 780, 872 N.E.2d 893 [2007], reconsideration denied 9 N.Y.3d 884, 842 N.Y.S.2d 796, 874 N.E.2d 763 [2007] ; see People v. Konikov , 160 A.D.2d 146, 152-153, 559 N.Y.S.2d 901 [2d Dept. 1990], lv denied 76 N.Y.2d 941, 563 N.Y.S.2d 70, 564 N.E.2d 680 [1990] ). Because the evidence is insufficient to support the predicate felony of burglary, the evidence is likewise insufficient to support the conviction of felony murder (see People v. Johnson , 250 A.D.2d 1026, 1028, 673 N.Y.S.2d 765 [3d Dept. 1998], lv denied 92 N.Y.2d 899, 680 N.Y.S.2d 63, 702 N.E.2d 848 [1998] ; People v. Parker , 96 A.D.2d 1063, 1065, 466 N.Y.S.2d 700 [2d Dept. 1983] ). We therefore further modify the judgment by reversing that part convicting him of felony murder in the second degree and by dismissing count three of the indictment.
Defendant failed to preserve for our review his contention that he was improperly restrained at trial by a stun belt (see People v. Schrock , 73 A.D.3d 1429, 1431, 900 N.Y.S.2d 804 [4th Dept. 2010], lv denied 15 N.Y.3d 855, 909 N.Y.S.2d 33, 935 N.E.2d 825 [2010] ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).
Defendant failed to preserve for our review his contention that the court erred in failing to charge the jury in accordance with CPL 60.50 (see People v. Higgins , 123 A.D.3d 1143, 1144, 997 N.Y.S.2d 497 [2d Dept. 2014], lv denied 25 N.Y.3d 1073, 12 N.Y.S.3d 625, 34 N.E.3d 376 [2015] ). In any event, that contention lacks merit. CPL 60.50 "does not mandate submission of independent evidence of every component of the crime charged ..., but instead calls for ‘some proof, of whatever weight, that a crime was committed by someone’ " ( People v. Chico , 90 N.Y.2d 585, 589, 665 N.Y.S.2d 5, 687 N.E.2d 1288 [1997] ). Here, the People offered ample physical evidence that someone murdered the victim. Furthermore, we reject defendant's contention that counsel was ineffective for failing to request that charge (see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ). Counsel is not ineffective for failing to make an argument that has " ‘little or no chance of success’ " ( People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ). Finally, the sentence is not unduly harsh or severe.