Opinion
13909 Ind. No. 2872/12 Case No. 2015-944
05-25-2021
The PEOPLE of the State of New York, Respondent, v. Ronald JACKSON, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Matthew Bova of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sheila O'Shea of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Matthew Bova of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sheila O'Shea of counsel), for respondent.
Renwick, J.P., Gische, Webber, Scarpulla, JJ.
Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered April 8, 2014, convicting defendant, after a jury trial, of auto stripping in the first degree, criminal mischief in the third degree (six counts), criminal mischief in the fourth degree (three counts), and possession of burglar's tools, and sentencing him, as a second felony offender, to an aggregate term of 12 to 24 years, unanimously reversed, on the law and the facts and as a matter of discretion in the interest of justice, the conviction on count four (criminal mischief in the third degree) vacated, that count dismissed, the auto stripping count reduced to auto stripping in the second degree, and the matter remanded for a new trial on that count and the remaining counts.
Defendant's waiver of his right to counsel was invalid, because the record "does not sufficiently demonstrate that defendant was aware of his actual sentencing exposure" ( People v. Rodriguez, 158 A.D.3d 143, 152, 66 N.Y.S.3d 488 [1st Dept. 2018], lv denied 31 N.Y.3d 1017, 78 N.Y.S.3d 287, 102 N.E.3d 1068 [2018] ). "The critical consideration is defendant's knowledge at the point in time when he first waived his right to counsel"; the court's subsequent warnings about sentencing "were incapable of retrospectively ‘curing’ the ... court's error" ( People v. Crampe, 17 N.Y.3d 469, 483, 932 N.Y.S.2d 765, 957 N.E.2d 255 [2011], cert denied sub nom. New York v. Wingate, 565 U.S. 1261, 132 S.Ct. 1746, 182 L.Ed.2d 531 [2012] ). Statements made in court more than four months before the waiver, and at defendant's arraignment more than a year before the waiver, also did not adequately apprise defendant of his sentencing exposure. Moreover, the court "improperly granted defendant's request to proceed pro se without first conducting a searching inquiry regarding defendant's mental capacity to waive counsel" ( People v. Zi, 178 A.D.3d 591, 591, 117 N.Y.S.3d 21 [1st Dept. 2019], lv denied 35 N.Y.3d 1117, 133 N.Y.S.3d 505, 158 N.E.3d 522 [2020] ), in light of his history of mental illness, as well as his statement, in response to the court's reference to the "tremendous pitfalls of representing yourself," that "[n]one of that has been explained," even after the court had warned him of a number of such risks.
Defendant's conviction of third-degree criminal mischief as to one of the vehicles he damaged (count four), and his conviction of first-degree auto stripping, were unsupported by legally sufficient evidence (a claim we review in the interest of justice), and were also against 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] ). The People failed to establish that particular charge of criminal mischief because the evidence did not show that "the reasonable cost of repairing the damaged property" ( People v. Garcia, 29 A.D.3d 255, 263, 812 N.Y.S.2d 66 [1st Dept. 2006], lv denied 7 N.Y.3d 789, 821 N.Y.S.2d 818, 854 N.E.2d 1282 [2006] ) exceeded $250 ( Penal Law § 145.05[2] ). Such costs "may not be established by hearsay" ( Garcia, 29 A.D.3d at 263, 812 N.Y.S.2d 66 ). The People relied on a nonexpert witness who was not the owner of the vehicle and did not pay for the repairs, but testified that he looked at a receipt and that the repair costs were $600 (see People v. Butler, 123 A.D.2d 877, 507 N.Y.S.2d 477 [2d Dept. 1986] ). The writing on which he based his testimony was hearsay (see e.g. People v. Maisonette, 8 A.D.3d 158, 158–59, 779 N.Y.S.2d 65 [1st Dept. 2004], lv denied 3 N.Y.3d 677, 784 N.Y.S.2d 16, 817 N.E.2d 834 [2004] ), and the People do not invoke any exception to the hearsay rule. In the absence of admissible evidence as to the repair costs for that vehicle, the People also failed to establish that the aggregate damage to all the vehicles exceeded $3,000, the minimum value for first-degree auto stripping ( Penal Law § 165.11 ).
We have reviewed defendant's claims regarding the sufficiency and weight of the evidence and find them unavailing.
Defendant requests that count four be reduced to fourth-degree criminal mischief. However, given that no lesser included offense of count four was submitted to the jury, a new trial of such a reduced count would be barred by constitutional double jeopardy principles (see People v. Owens, 227 A.D.2d 256, 642 N.Y.S.2d 874 [1st Dept. 1996], lv denied 88 N.Y.2d 991, 649 N.Y.S.2d 398, 672 N.E.2d 624 [1996], cert denied 520 U.S. 1224, 117 S.Ct. 1724, 137 L.Ed.2d 845 [1997] ). No such constitutional impediment exists to a new trial on the reduced count of second-degree auto stripping, which was submitted to the jury as a lesser included offense of first-degree auto stripping, but was not reached by the jury because it convicted defendant of the greater count (see Matter of Suarez v. Byrne, 10 N.Y.3d 523, 525, 537–538, 860 N.Y.S.2d 439, 890 N.E.2d 201 [2008] ). Accordingly, we dismiss count four, but reduce the auto stripping count to second-degree auto stripping ( Penal Law § 165.10 ).
Because we are ordering a new trial, we find it unnecessary to reach defendant's remaining arguments.