Opinion
12325 Ind. No. 862/16 Case No. 2019-669
11-10-2020
The PEOPLE of the State of New York, Respondent, v. Davia CLARKE, Defendant–Appellant.
Stephen Chu, Interim Attorney–in–Charge, Office of the Appellate Defender, New York (Rosemary Herbert of counsel) and Weil. Gotschal & Manges, LLP, New York (Colin McGrath of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Luis Morales of counsel), for respondent.
Stephen Chu, Interim Attorney–in–Charge, Office of the Appellate Defender, New York (Rosemary Herbert of counsel) and Weil. Gotschal & Manges, LLP, New York (Colin McGrath of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Luis Morales of counsel), for respondent.
Friedman, J.P., Renwick, Oing, Mendez, JJ.
Judgment, Supreme Court, New York County (Neil E. Ross, J.), rendered June 29, 2017, convicting defendant, after a jury trial, of robbery in the third degree, grand larceny in the fourth degree and possession of burglar's tools, and sentencing her to five years' probation, unanimously modified, on the facts, to the extent of vacating the conviction for possession of burglar's tools as against the weight of the evidence, and dismissing that count of the indictment, and otherwise affirmed.
The court responded meaningfully to a note from the deliberating jury asking the specific question of whether a defendant can be "guilty of robbery if not guilty of larceny in the fourth degree." By responding that the answer was "yes," the court gave a correct answer to the specific question posed by the jury, and it was not required to go beyond that question (see People v. Almodovar, 62 N.Y.2d 126, 131, 476 N.Y.S.2d 95, 464 N.E.2d 463 [1984] ; People v. Malloy, 55 N.Y.2d 296, 449 N.Y.S.2d 168, 434 N.E.2d 237 [1982], cert. denied 459 U.S. 847, 103 S.Ct. 104, 74 L.Ed.2d 93 [1982] ). Furthermore, there is no indication that the court's response to the note caused any prejudice (see People v. Lourido, 70 N.Y.2d 428, 435, 522 N.Y.S.2d 98, 516 N.E.2d 1212 [1987] ).
The court properly denied defendant's challenge for cause to a prospective juror. Taking his statements "in context and as a whole" (see People v. Chambers, 97 N.Y.2d 417, 419, 740 N.Y.S.2d 291, 766 N.E.2d 953 [2002] ), the panelist, who had twice been robbed, unequivocally promised to be a fair and impartial juror (see People v. Arnold, 96 N.Y.2d 358, 363, 729 N.Y.S.2d 51, 753 N.E.2d 846 [2001] ).
Defendant's argument that her conviction of possession of burglar's tools was against the weight of the evidence has merit (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). The evidence did not warrant the conclusion that the object at issue met the statutory definition (see People v. Cobb, 198 A.D.2d 128, 604 N.Y.S.2d 54 [1st Dept. 1993] ; People v. Nieves, 133 A.D.2d 234, 235, 518 N.Y.S.2d 851 [2d Dept. 1987], lv denied 70 N.Y.2d 935, 524 N.Y.S.2d 687, 519 N.E.2d 633 [1987] ).