Opinion
11-03-2016
The PEOPLE of the State of New York, Respondent, v. Bradley J. ROBTOY, Appellant.
Mitch Kessler, Cohoes, for appellant. Andrew J. Wylie, District Attorney, Plattsburgh (Timothy Blatchely of counsel), for respondent.
Mitch Kessler, Cohoes, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Timothy Blatchely of counsel), for respondent.
Before: McCARTHY, J.P., GARRY, DEVINE, CLARK and MULVEY, JJ.
McCARTHY, J.P.Appeal from a judgment of the County Court of Clinton County (McGill, J.), rendered September 3, 2013, upon a verdict convicting defendant of the crimes of criminal possession of stolen property in the fourth degree (two counts), criminal possession of stolen property in the fifth degree (three counts) and conspiracy in the fifth degree.After recovering copper wire reported to be stolen and reported to have been sold to scrap yards by, among others, defendant, authorities charged defendant with two counts of criminal possession of stolen property in the fourth degree, three counts of criminal possession of stolen property in the fifth degree and one count of conspiracy in the fifth degree. Following a jury trial, defendant was convicted on all counts and sentenced, as a second felony offender, to an aggregate prison term of 2 to 4 years. Defendant appeals, and we affirm.
The overwhelming evidence of defendant's guilt renders his contention that the verdict was against the weight of the evidence without merit. “A person is guilty of criminal possession of stolen property in the fourth degree when he [or she] knowingly possesses stolen property, with intent to benefit himself[, herself] or a person other than an owner thereof or to impede the recovery by an owner thereof, and when ... [t]he value of the property exceeds [$1,000]” (Penal Law § 165.45[1] ). “A person is guilty of criminal possession of stolen property in the fifth degree when he [or she] knowingly possesses stolen property, with intent to benefit himself[, herself] or a person other than an owner thereof or to impede the recovery by an owner thereof” (Penal Law § 165.40 ). “A person is guilty of conspiracy in the fifth degree when, with intent that conduct constituting ... a felony be performed, he [or she] agrees with one or more persons to engage in or cause the performance of such conduct” and at least one of the conspirators commits an overt act in furtherance of the conspiracy (Penal Law § 105.05[1] ; see Penal Law § 105.20 ; People v. Canale, 268 A.D.2d 699, 699, 704 N.Y.S.2d 151 [2000] ).
A variety of evidence presented by multiple witnesses established defendant's commission of the aforementioned crimes. Tire tracks leading away from the construction site at which copper wire valued at approximately $18,000 to $20,000 was stolen were similar to the tread on the tires of defendant's vehicle and were similar to tire tracks in defendant's driveway. Defendant was clearly identified-by security video, eyewitness identification and photocopies of identification that he provided-along with other men, as selling copper wire to scrap yards in the aftermath of the theft, some of which was recovered. When defendant was arrested, he had exactly the amount of cash on him that matched a recent scrap yard sale and had two receipts on him regarding such scrap yard sales. A codefendant engaged in selling the recovered copper wire with defendant used a fake name while selling such wire and, at least on one occasion, defendant and the other men involved in the sales made a point of selling copper wire in increments small enough so that they could receive cash instead of checks. One scrap yard employee explained that defendant appeared to be generally concerned with hiding the copper wire that he wished to sell, storing it under a blanket in his vehicle.
Based on the company name, size and types of reels of some of the copper wire recovered by police that defendant had sold, the wire was identified as that which had been stolen. Further, authorities found copper wire in defendant's home, some of which had tags that matched the tags on wire that had been stolen. Further proof regarding the value of the property that defendant stole established that defendant received more that $2,300 in exchange for copper wire on April 17, 2016. On April 18, 2016 and at one scrap yard, defendant and the men that he was with received more than $1,600 in exchange for copper wire. Considering the evidence as a whole, the verdict was not against the weight of the evidence (see People v. Smith, 138 A.D.3d 1248, 1250, 29 N.Y.S.3d 660 [2016], lv. denied 27 N.Y.3d 1139 [2016] ; People v. Helms, 119 A.D.3d 1153, 1155, 990 N.Y.S.2d 314 [2014], lv. denied 24 N.Y.3d 1044, 998 N.Y.S.2d 314, 23 N.E.3d 157 [2014] ; People v. Royster, 107 A.D.3d 1298, 1300–1301, 967 N.Y.S.2d 533 [2013], lv. denied 22 N.Y.3d 958, 977 N.Y.S.2d 189, 999 N.E.2d 554 [2013] ; People v. Hardy, 57 A.D.3d 1100, 1102, 868 N.Y.S.2d 829 [2008], lv. denied 12 N.Y.3d 784, 879 N.Y.S.2d 60, 906 N.E.2d 1094 [2009] ; People v. Swackhammer, 65 A.D.3d 713, 714, 883 N.Y.S.2d 651 [2009] ; People v. Ormsby, 5 A.D.3d 868, 870–871, 774 N.Y.S.2d 191 [2004] ; People v. Harris, 288 A.D.2d 610, 618, 732 N.Y.S.2d 664 [2001], affd. 99 N.Y.2d 202, 753 N.Y.S.2d 437, 783 N.E.2d 502 [2002] ).
As defendant concedes, his contention that the People improperly elicited testimony regarding his invocation of his right to remain silent as a part of their direct case is unpreserved for our review (see People v. McArthur, 101 A.D.3d 752, 752, 956 N.Y.S.2d 71 [2012], lv. denied 20 N.Y.3d 1101, 965 N.Y.S.2d 797, 988 N.E.2d 535 [2013] ; see generally People v. Clarke, 110 A.D.3d 1341, 1345, 975 N.Y.S.2d 194 [2013], lv. denied 22 N.Y.3d 1197, 986 N.Y.S.2d 418, 9 N.E.3d 913 [2014] ). Moreover, corrective action in the interest of justice is unwarranted. Likewise, defendant failed to preserve his contention that County Court erred in charging the jury that it was to draw no adverse inference from defendant's decision not to testify, and, in any event, such an error was harmless (see People v. Koberstein, 66 N.Y.2d 989, 991, 499 N.Y.S.2d 379, 489 N.E.2d 1281 [1985] ; People v. Robinson, 1 A.D.3d 985, 986, 768 N.Y.S.2d 50 [2003], lv. denied 1 N.Y.3d 633, 777 N.Y.S.2d 32, 808 N.E.2d 1291 [2004] ).
Finally, County Court did not err in responding to the jury's request for a transcript of testimony from certain witnesses regarding certain topics (see generally CPL 310.30 ). The court read the note from the jury verbatim and announced its intention to permit a readback of the requested testimony one witness at a time, to which defense counsel did not object. In explaining the procedure to the jury, the court stated, “once you've heard the first readback ... it might answer your questions” and explained that the jury could return to deliberations while the court reporter prepared additional testimony for readback, to which defense counsel did not object. After the readback of the relevant portions of one witness's testimony, and presumably while the court reporter was preparing additional testimony for readback, the jury informed the court that it had reached a verdict. As defendant concedes, no mode of proceedings error occurred (see People v. Morris, 27 N.Y.3d 1096, 1098, 36 N.Y.S.3d 52, 55 N.E.3d 1025 [2016] ; People v. Mack, 27 N.Y.3d 534, 543, 36 N.Y.S.3d 68, 55 N.E.3d 1041 [2016] ), and, thus, defendant's failure to lodge any complaint to any of the steps that the court took to respond to the request renders the issue unpreserved for our review (see People v. Sorrell, 108 A.D.3d 787, 793, 969 N.Y.S.2d 198 [2013], lv. denied 23 N.Y.3d 1025, 992 N.Y.S.2d 808, 16 N.E.3d 1288 [2014] ). Moreover, defendant's current contention that the court should not have allowed the jury to reach a verdict until the entire readback had been completed is unavailing. By informing the court that it had reached a verdict prior to the completion of the readback, the jury unambiguously indicated that it was no longer in need of previously requested information (see People v. Douglass, 115 A.D.3d 1055, 1057, 981 N.Y.S.2d 846 [2014] ; People v. Sorrell, 108 A.D.3d at 793, 969 N.Y.S.2d 198 [2013] ; People v.
Albanese, 45 A.D.3d 691, 692, 850 N.Y.S.2d 112 [2007], lv. denied 10 N.Y.3d 761, 854 N.Y.S.2d 323, 883 N.E.2d 1258 [2008] ).
ORDERED that the judgment is affirmed.
GARRY, DEVINE, CLARK and MULVEY, JJ., concur.