Opinion
929 KA 18-01883
12-23-2021
The PEOPLE of the State of New York, Respondent, v. Farod MOSLEY, Defendant-Appellant. (Appeal No. 2.)
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (NATHANIEL V. RILEY OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JESSICA N. CARBONE OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (NATHANIEL V. RILEY OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JESSICA N. CARBONE OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, 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 by reducing the sentence imposed for burglary in the second degree under count four of the indictment to a determinate term of incarceration of seven years and five years of postrelease supervision, and as modified the judgment is affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia, burglary in the second degree ( Penal Law § 140.25 [2] ), defendant contends that the evidence is legally insufficient to establish that he knowingly entered the victim's dwelling unlawfully. We reject that contention. To convict a person of burglary in the second degree, the People are required to establish that the defendant knowingly entered or remained unlawfully in a dwelling with the intent to commit a crime therein (see § 140.25 [2] ). "A person ‘enters or remains unlawfully’ in or upon premises when he [or she] is not licensed or privileged to do so" (§ 140.00 [5]). "In general, a person is licensed or privileged to enter private premises when he [or she] has obtained the consent of the owner or another whose relationship to the premises gives him [or her] authority to issue such consent" ( People v. Dombrowski , 87 A.D.3d 1267, 1268, 930 N.Y.S.2d 321 [4th Dept. 2011] [internal quotation marks omitted]; see People v. Graves , 76 N.Y.2d 16, 20, 556 N.Y.S.2d 16, 555 N.E.2d 268 [1990] ). Because the intruder "must be aware of the fact that he [or she] has no license or privilege to enter the premises ..., a person who mistakenly believed that he [or she] was licensed or privileged to enter a building ... would not be guilty of burglary, even though he [or she] entered with intent to commit a crime therein" ( People v. Uloth , 201 A.D.2d 926, 926, 607 N.Y.S.2d 767 [4th Dept. 1994] ; see Dombrowski , 87 A.D.3d at 1268, 930 N.Y.S.2d 321 ).
Viewing the evidence in the light most favorable to the People, we conclude that "there is a valid line of reasoning and permissible inferences from which a rational jury could have" determined that defendant unlawfully entered the victim's dwelling ( People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] [internal quotation marks omitted]; see generally People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ). Although there is no "direct testimony by the occupant[ ]" establishing defendant's unlawful entry, defendant's unlawful entry can be established circumstantially ( People v. Thornton , 4 A.D.3d 561, 562, 771 N.Y.S.2d 597 [3d Dept. 2004], lv denied 2 N.Y.3d 808, 781 N.Y.S.2d 307, 814 N.E.2d 479 [2004] ; see People v. Tennant , 285 A.D.2d 817, 818-819, 728 N.Y.S.2d 292 [3d Dept. 2001] ). Despite testimony that defendant had, on occasion, been permitted to spend time at the victim's apartment, "it does not follow from that testimony that defendant had permission to enter the dwelling without the owner's knowledge or invitation" ( People v. Little , 139 A.D.3d 1356, 1356, 30 N.Y.S.3d 478 [4th Dept. 2016], lv denied 28 N.Y.3d 933, 40 N.Y.S.3d 361, 63 N.E.3d 81 [2016] ), particularly where there was no evidence that defendant also lived at the apartment (cf. People v. McCargo , 226 A.D.2d 480, 480-481, 641 N.Y.S.2d 322 [2d Dept. 1996] ). Indeed, the People presented evidence that the victim had taken steps to secure her apartment to prevent defendant and a friend from stealing from her and that she had made statements to defendant intended to convey to him that she did not want him in her apartment by himself. The People also presented evidence that defendant used force to enter the apartment through a window (see People v. Clarke , 185 A.D.2d 124, 125-126, 585 N.Y.S.2d 738 [1st Dept. 1992], affd 81 N.Y.2d 777, 593 N.Y.S.2d 784, 609 N.E.2d 137 [1993] ; Little , 139 A.D.3d at 1356, 30 N.Y.S.3d 478 ; Thornton , 4 A.D.3d at 562, 771 N.Y.S.2d 597 ).
Viewing the evidence in light of the elements of the crime as charged to the jury (see Danielson , 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we also reject defendant's contention that the verdict with respect to burglary in the second degree is against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Where, as here, "witness credibility is of paramount importance to the determination of guilt or innocence, we must give great deference to the jury, given its opportunity to view the witnesses and observe their demeanor" ( People v. Streeter , 118 A.D.3d 1287, 1288, 987 N.Y.S.2d 775 [4th Dept. 2014], lv denied 23 N.Y.3d 1068, 994 N.Y.S.2d 327, 18 N.E.3d 1148 [2014], reconsideration denied 24 N.Y.3d 1047, 998 N.Y.S.2d 317, 23 N.E.3d 160 [2014] [internal quotation marks omitted]). We note that there was nothing about the testimony establishing defendant's guilt that was "manifestly untrue, physically impossible, contrary to experience, or self-contradictory" ( People v. Barnes , 158 A.D.3d 1072, 1073, 70 N.Y.S.3d 679 [4th Dept. 2018], lv denied 31 N.Y.3d 1011, 78 N.Y.S.3d 281, 102 N.E.3d 1062 [2018] [internal quotation marks omitted]; see People v. Smith , 73 A.D.3d 1469, 1470, 900 N.Y.S.2d 802 [4th Dept. 2010], lv denied 15 N.Y.3d 778, 907 N.Y.S.2d 467, 933 N.E.2d 1060 [2010] ). Further, the jury was entitled to disregard any portions of relevant testimony it found to be untruthful and accept the portions it found to be truthful and accurate (see People v. Jemes , 132 A.D.3d 1361, 1362, 17 N.Y.S.3d 539 [4th Dept. 2015], lv denied 26 N.Y.3d 1110, 26 N.Y.S.3d 768, 47 N.E.3d 98 [2016] ).
We conclude that County Court did not abuse its discretion in refusing to grant defendant youthful offender status (see People v. Simpson , 182 A.D.3d 1046, 1047, 120 N.Y.S.3d 910 [4th Dept. 2020], lv denied 35 N.Y.3d 1049, 127 N.Y.S.3d 823, 151 N.E.3d 504 [2020] ; People v. Lewis , 128 A.D.3d 1400, 1400, 7 N.Y.S.3d 800 [4th Dept. 2015], lv denied 25 N.Y.3d 1203, 16 N.Y.S.3d 526, 37 N.E.3d 1169 [2015] ; see generally People v. Minemier , 29 N.Y.3d 414, 421, 57 N.Y.S.3d 696, 80 N.E.3d 389 [2017] ). In addition, having reviewed the applicable factors pertinent to a youthful offender determination (see People v. Keith B.J. , 158 A.D.3d 1160, 1160, 70 N.Y.S.3d 291 [4th Dept. 2018] ), we decline to exercise our interest of justice jurisdiction to adjudicate him a youthful offender (see Simpson , 182 A.D.3d at 1047, 120 N.Y.S.3d 910 ; Lewis , 128 A.D.3d at 1400-1401, 7 N.Y.S.3d 800 ; cf. Keith B.J. , 158 A.D.3d at 1161, 70 N.Y.S.3d 291 ).
We agree with defendant, however, that the sentence imposed—a determinate term of incarceration of 15 years, which is the legal maximum ( Penal Law § 70.02 [3] [b] )—is unduly harsh and severe. Under the circumstances of this case, including that defendant was 17 years old at the time of the incident, we modify the judgment as a matter of discretion in the interest of justice by reducing the sentence to a determinate term of incarceration of seven years followed by the five-year period of postrelease supervision previously imposed by the court (see generally CPL 470.15 [6] [b] ), which will continue to run consecutively to the sentences imposed under Indictment No. 2016-0678-1.