Opinion
1061 KA 17–01099
01-31-2020
The PEOPLE of the State of New York, Respondent, v. Charles STRAUSS, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF COUNSEL), FOR DEFENDANT–APPELLANT. CHARLES STRAUSS, DEFENDANT–APPELLANT PRO SE. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (DARIENN P. BALIN OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF COUNSEL), FOR DEFENDANT–APPELLANT.
CHARLES STRAUSS, DEFENDANT–APPELLANT PRO SE.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (DARIENN P. BALIN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND WINSLOW, 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 directing that the sentence imposed for burglary in the second degree under count two of the indictment shall run concurrently with the sentence imposed under count one of the indictment and consecutive to the sentence imposed in Madison County Court, and as modified the judgment is affirmed.
Memorandum: On appeal from a judgment convicting him, upon a jury verdict, of eight counts of burglary in the second degree ( Penal Law § 140.25[2] ) and one count of attempted burglary in the second degree ( §§ 110.00, 140.25[2] ), defendant contends, in both his main and pro se supplemental briefs, that County Court erred in denying his motion to dismiss the indictment on speedy trial grounds (see CPL 30.30 ). We reject that contention. Where, as here, a defendant is charged with a felony offense, the People must announce readiness for trial within six months of the commencement of the action (see CPL 30.30[1][a] ; People v. Cortes , 80 N.Y.2d 201, 207 n 3, 590 N.Y.S.2d 9, 604 N.E.2d 71 [1992], rearg. denied 81 N.Y.2d 1068, 601 N.Y.S.2d 586, 619 N.E.2d 664 [1993] ), "exclusive of the days chargeable to the defense" ( People v. Waldron , 6 N.Y.3d 463, 467, 814 N.Y.S.2d 70, 847 N.E.2d 367 [2006] ).
Here, defendant established that 404 days elapsed between the commencement of the criminal action against defendant on November 13, 2014, when the felony complaints were filed (see CPL 1.20[17] ; People v. Osgood , 52 N.Y.2d 37, 43, 436 N.Y.S.2d 213, 417 N.E.2d 507 [1980] ), and the People's announcement of their readiness for trial on December 22, 2015. Thus, defendant met his initial burden on the motion of establishing that the People were not ready for trial within six months, and the burden shifted to the People to establish time periods that were chargeable to the defense (see People v. Berkowitz , 50 N.Y.2d 333, 349, 428 N.Y.S.2d 927, 406 N.E.2d 783 [1980] ; People v. Gushlaw, (Appeal No. 2), 112 A.D.2d 792, 793, 492 N.Y.S.2d 292 (4th Dept. 1985), lv. denied 66 N.Y.2d 919, 498 N.Y.S.2d 1034, 489 N.E.2d 779 [1985] ).
Defendant correctly concedes that the nine-day period from November 25 to December 4, 2015 is excludable and, contrary to his contention, the People established that an additional 222 days were excludable inasmuch as defendant's attorneys waived defendant's speedy trial rights pursuant to CPL 30.30 with respect to that period (see People v. Trepasso , 197 A.D.2d 891, 891, 602 N.Y.S.2d 291 (4th Dept. 1993), lv denied 82 N.Y.2d 854, 606 N.Y.S.2d 606, 627 N.E.2d 527 [1993] ). Thus, only 173 days were chargeable to the People, and therefore the court properly denied defendant's motion to dismiss the indictment on speedy trial grounds (see CPL 30.30 ).
Contrary to the further contentions of defendant in his pro se supplemental brief, "a waiver under CPL 30.30 ‘does not involve such a fundamental decision that it cannot be made by counsel’ " ( People v. Wheeler , 159 A.D.3d 1138, 1141–1142, 72 N.Y.S.3d 220 (3d Dept. 2018), lv denied 31 N.Y.3d 1123, 81 N.Y.S.3d 383, 106 N.E.3d 766 [2018] ), and CPL 30.30(4)(b) does not require the court to approve the decision of defense counsel to waive speedy trial rights (see generally People v. Waldron , 6 N.Y.3d 463, 467, 814 N.Y.S.2d 70, 847 N.E.2d 367 [2006] ; People v. Lewins , 151 A.D.3d 575, 576, 58 N.Y.S.3d 313 (1st Dept. 2017), lv. denied 30 N.Y.3d 981, 89 N.E.3d 1263 [2017] ).
Defendant contends in his main brief that the court erred in admitting evidence related to jewelry that was found inside a storage unit owned by defendant's mother, including recorded jail telephone conversations between defendant and his mother where defendant asked his mother and his sister to remove items from the storage unit. He asserts that the People failed to establish that the jewelry was connected to the charged crimes, and thus that the evidence constituted inadmissible Molineux evidence. We reject defendant's contention. Defendant's accomplice testified that he noticed some of the jewelry that was stolen during the charged crimes was missing when he and defendant went to sell the stolen items at the pawn shops, and the accomplice further testified that defendant later told the accomplice that he had hidden some of the jewelry stolen during the charged crimes in the storage unit. Thus, contrary to defendant's contention, we conclude that the evidence constituted direct evidence of defendant's participation in the charged crimes and was "not Molineux evidence at all" ( People v. Arafet , 13 N.Y.3d 460, 465, 892 N.Y.S.2d 812, 920 N.E.2d 919 [2009] ; see generally People v. Hillard , 79 A.D.3d 1757, 1758, 917 N.Y.S.2d 778 (4th Dept. 2010), lv denied 17 N.Y.3d 796, 929 N.Y.S.2d 104, 952 N.E.2d 1099 [2011] ). Furthermore, in the recorded jail telephone calls, defendant told his mother that her failure to remove certain items from the storage unit could result in defendant spending 30 years in jail. "Certain postcrime conduct is ‘indicative of a consciousness of guilt, and hence of guilt itself’ " ( People v. Bennett , 79 N.Y.2d 464, 469, 583 N.Y.S.2d 825, 593 N.E.2d 279 [1992], quoting People v. Reddy , 261 N.Y. 479, 486, 185 N.E. 705 [1933] ), and we conclude that the evidence of the jail telephone calls was "properly admitted as evidence of defendant's consciousness of guilt" ( People v. Wallace , 59 A.D.3d 1069, 1070, 873 N.Y.S.2d 403 (4th Dept. 2009), lv denied 12 N.Y.3d 861, 881 N.Y.S.2d 672, 909 N.E.2d 595 [2009] ).
Defendant further contends in his main brief that the court erred in refusing to suppress cell site location information (CSLI) records on the ground that they were improperly obtained by the People without a warrant. Even assuming, arguendo, that the court erred in admitting the CSLI records, we conclude that the error was harmless inasmuch as the evidence of defendant's identity as a participant in the crimes was overwhelming, and there is no reasonable possibility that, but for the admission in evidence of those records, the verdict would have been different (see People v. Crimmins , 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ; People v. Jiles , 158 A.D.3d 75, 81, 68 N.Y.S.3d 787 (4th Dept. 2017), lv denied 31 N.Y.3d 1149, 83 N.Y.S.3d 431, 108 N.E.3d 505 [2018] ). Defendant's accomplice testified about defendant's participation in the burglaries, and items stolen during the burglaries were recovered from defendant's apartment, including from his bedroom, and were identified by the victims as property that was stolen from their homes during the burglaries.
We agree with the contention of defendant in his main brief, however, that the aggregate sentence of 50 years to life in prison imposed by the court is unduly harsh and severe under the circumstances of this case. We therefore modify the judgment as a matter of discretion in the interest of justice by directing that the sentence imposed for burglary in the second degree under count two of the indictment shall run concurrently with the sentence imposed under count one of the indictment, and consecutive to the sentence imposed in Madison County Court.