Opinion
1083 KA 15–01989
03-13-2020
The PEOPLE of the State of New York, Respondent, v. Jerry L. KING, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (J. SCOTT PORTER OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (J. SCOTT PORTER OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the third degree ( Penal Law § 140.20 ) and public lewdness (§ 245.00). Defendant was previously tried on the same charges, but Supreme Court granted his motion to set aside the jury verdict following his first trial due to erroneous jury instructions. We affirm.
Defendant contends that the evidence at the first trial was not legally sufficient to establish his intent at the time he entered the building and that the entry was unlawful. As the People correctly concede, we may review the sufficiency of the evidence at defendant's first trial inasmuch as the Double Jeopardy Clauses of the State and Federal Constitutions preclude a second trial if the evidence from the first trial is determined by the reviewing court to be legally insufficient (see Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 57 L.Ed.2d 1 [1978] ; Matter of Suarez v. Byrne, 10 N.Y.3d 523, 532–533, 860 N.Y.S.2d 439, 890 N.E.2d 201 [2008], rearg. denied 11 N.Y.3d 753, 864 N.Y.S.2d 801, 894 N.E.2d 1191 [2008] ; see generally People v. Scerbo, 74 A.D.3d 1730, 1731, 903 N.Y.S.2d 621 [4th Dept. 2010], lv denied 15 N.Y.3d 757, 906 N.Y.S.2d 830, 933 N.E.2d 229 [2010] ). After conducting such a review, however, we reject defendant's contention.
A conviction is supported by legally sufficient evidence "when, viewing the facts in [the] light most favorable to the People, ‘there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt’ " ( People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Here, defendant was charged with burglary in the third degree for allegedly entering a library building on a college campus with the intent to commit a crime therein. The People concede that their bill of particulars alleged that defendant intended to commit the crime of public lewdness at the time he unlawfully entered the building at issue. Because defendant "has a fundamental and nonwaivable right to be tried only on the crimes charged ... [and] because the People specifically narrowed their theory of [the crime] in the bill of particulars, [the court] was obliged to hold the prosecution to this narrower theory alone" ( People v. Bradley, 154 A.D.3d 1279, 1280, 63 N.Y.S.3d 159 [4th Dept. 2017] [internal quotation marks omitted]; see People v. Barnes, 50 N.Y.2d 375, 379 n. 3, 429 N.Y.S.2d 178, 406 N.E.2d 1071 [1980] ). Thus, the People were required to establish that defendant entered the building unlawfully and that he intended to commit the crime of public lewdness at the time of his unlawful entry.
It is well settled that a defendant's intent to commit a crime "may be inferred from the circumstances of the entry" ( People v. Gaines, 74 N.Y.2d 358, 362 n. 1, 547 N.Y.S.2d 620, 546 N.E.2d 913 [1989] ). Furthermore, "the jury was entitled to infer [defendant']s intent to commit a crime while unlawfully in the [building] based upon[, inter alia,] his other actions while inside the [building]" ( People v. Rivera, 41 A.D.3d 1237, 1238, 837 N.Y.S.2d 460 [4th Dept. 2007], lv denied 10 N.Y.3d 939, 862 N.Y.S.2d 345, 892 N.E.2d 411 [2008] ; see People v. Garcia, 17 A.D.3d 283, 283, 794 N.Y.S.2d 27 [1st Dept. 2005], lv denied 5 N.Y.3d 789, 801 N.Y.S.2d 809, 835 N.E.2d 669 [2005] ), "as well as from defendant's actions and assertions when confronted" ( People v. Maier, 140 A.D.3d 1603, 1603–1604, 34 N.Y.S.3d 544 [4th Dept. 2016], lv denied 28 N.Y.3d 933, 40 N.Y.S.3d 361, 63 N.E.3d 81 [2016] [internal quotation marks omitted]; see People v. Mercado–Ramos, 161 A.D.3d 1516, 1516, 75 N.Y.S.3d 752 [4th Dept. 2018], lv denied 31 N.Y.3d 1150, 83 N.Y.S.3d 432, 108 N.E.3d 506 [2018] ; People v. Pendarvis, 143 A.D.3d 1275, 1275, 39 N.Y.S.3d 348 [4th Dept. 2016], lv denied 28 N.Y.3d 1149, 52 N.Y.S.3d 300, 74 N.E.3d 685 [2017] ).
Here, the evidence at the first trial, viewed in the light most favorable to the People, established that defendant "knew he had been barred from entering the premises" ( People v. Shakur, 110 A.D.3d 513, 514, 972 N.Y.S.2d 898 [1st Dept. 2013], lv denied 22 N.Y.3d 1043, 981 N.Y.S.2d 377, 4 N.E.3d 389 [2013] ) and, indeed, that he was banned from the entire college campus. He nevertheless was inside a library building on the campus. Thus, we conclude that the evidence is legally sufficient to establish that defendant unlawfully entered the building (see People v. Magnuson, 177 A.D.3d 1089, 1091, 113 N.Y.S.3d 383 [3d Dept. 2019] ). Further, there is circumstantial evidence that defendant removed a pair of sweatpants after he entered the library, so that when the victim first observed him he was wearing only shorts despite the fact that it was snowing outside at the time. In addition, the People submitted evidence from which the jury could have concluded that defendant then spent more than 40 minutes surreptitiously observing the victim from several concealed or obscured areas as she studied in a secluded part of the library, occasionally moving to a different vantage point or repositioning furniture in the library to afford himself a better view of her. He eventually took a seated position on a stool a few feet from her location, exposed his penis, and began masturbating. When she turned and observed his actions, he immediately apologized, put on his sweatpants, and fled the building. We conclude that the evidence is also legally sufficient to establish that defendant intended to commit the crime of public lewdness at the time he unlawfully entered the building (see generally People v. Beaty, 89 A.D.3d 1414, 1416–1417, 932 N.Y.S.2d 280 [4th Dept. 2011], affd 22 N.Y.3d 918, 977 N.Y.S.2d 172, 999 N.E.2d 535 [2013] ; People v. Stetin, 167 A.D.3d 1245, 1248–1249, 90 N.Y.S.3d 353 [3d Dept. 2018], lv denied 32 N.Y.3d 1178, 97 N.Y.S.3d 609, 121 N.E.3d 236 [2019] ).
Contrary to defendant's further contention, the court did not abuse its discretion in the Molineux ruling it issued prior to the second trial. The evidence of defendant's prior uncharged crimes and prior bad acts was properly admitted in evidence to establish his motive, intent, and identity (see People v. Wemette, 285 A.D.2d 729, 731, 728 N.Y.S.2d 805 [3d Dept. 2001], lv denied 97 N.Y.2d 689, 738 N.Y.S.2d 305, 764 N.E.2d 409 [2001] ; see generally People v. Molineux, 168 N.Y. 264, 293–294, 61 N.E. 286 [1901] ), and the evidence established that defendant previously committed "crimes so unique that the mere proof that the defendant had committed [them was] highly probative of the fact that he committed the one charged" ( People v. Condon, 26 N.Y.2d 139, 144, 309 N.Y.S.2d 152, 257 N.E.2d 615 [1970] ; see People v. Allweiss, 48 N.Y.2d 40, 45–49, 421 N.Y.S.2d 341, 396 N.E.2d 735 [1979] ; People v. Bonner, 94 A.D.3d 1500, 1501, 942 N.Y.S.2d 746 [4th Dept. 2012], lv denied 19 N.Y.3d 1101, 955 N.Y.S.2d 556, 979 N.E.2d 817 [2012], reconsideration denied 20 N.Y.3d 1059, 962 N.Y.S.2d 610, 985 N.E.2d 920 [2013] ). In addition, the prejudicial effect of the evidence did not outweigh its probative value (see People v. Goodrell, 130 A.D.3d 1502, 1503, 12 N.Y.S.3d 482 [4th Dept. 2015] ; Wemette, 285 A.D.2d at 731, 728 N.Y.S.2d 805 ), and the court provided several "limiting instruction[s that] minimized any prejudice to defendant" ( People v. Washington, 122 A.D.3d 1406, 1408, 997 N.Y.S.2d 194 [4th Dept. 2014], lv denied 25 N.Y.3d 1173, 15 N.Y.S.3d 304, 36 N.E.3d 107 [2015] ; see Goodrell, 130 A.D.3d at 1503, 12 N.Y.S.3d 482 ). Defendant failed to preserve for our review his further contention that the prosecutor elicited testimony that exceeded the court's Molineux ruling (see People v. Bastian, 83 A.D.3d 1468, 1469, 919 N.Y.S.2d 724 [4th Dept. 2011], lv denied 17 N.Y.3d 813, 929 N.Y.S.2d 801, 954 N.E.2d 92 [2011] ; People v. Sabb, 11 A.D.3d 350, 351, 783 N.Y.S.2d 34 [1st Dept. 2004], lv denied 4 N.Y.3d 748, 790 N.Y.S.2d 660, 824 N.E.2d 61 [2004] ), and 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] ).