Opinion
10-27-2016
The PEOPLE of the State of New York, Respondent, v. Latroy WOMACK, Appellant.
Timothy S. Brennan, Schenectady, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Timothy S. Brennan, Schenectady, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: PETERS, P.J., EGAN JR., LYNCH, ROSE and AARONS, JJ.
AARONS, J.Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered October 2, 2013, upon a verdict convicting defendant of the crimes of burglary in the second degree, aggravated criminal contempt (two counts) and assault in the third degree.
Defendant was charged in a multi-count indictment stemming from his assault on the victim, the mother of one of his children and with whom he had a physically abusive relationship. Following a jury trial, defendant was convicted of burglary in the second degree, two counts of aggravated criminal contempt and assault in second degree. County Court thereafter sentenced defendant, as a second felony offender, to concurrent prison terms, the greatest of which was 10 years, followed by five years of postrelease supervision. Defendant now appeals. We affirm.
Defendant contends that the proof was legally insufficient as to the element of intent for the conviction for burglary in the second degree. Burglary in the second degree requires that the People prove that defendant “knowingly enter[ed] or remain[ed] unlawfully in a [dwelling] with intent to commit a crime therein” (Penal Law § 140.25[2] ). “[I]ntent may be inferred from the circumstances of [defendant's] unlawful entry, unexplained presence on the premises, and actions and statements when confronted by police or the property owner” (People v. Ostrander, 46 A.D.3d 1217, 1218, 847 N.Y.S.2d 791 [2007] ; see People v. Lewis, 5 N.Y.3d 546, 552, 807 N.Y.S.2d 1, 840 N.E.2d 1014 [2005] ; People v. Peterson, 118 A.D.3d 1151, 1152, 988 N.Y.S.2d 271 [2014], lvs. denied 24 N.Y.3d 1087, 1 N.Y.S.3d 14, 25 N.E.3d 351 [2014] ). It is not necessary for the People to prove that defendant had the intent to commit a particular crime when entering or remaining in the dwelling (see People v. Cajigas, 19 N.Y.3d 697, 701, 955 N.Y.S.2d 296, 979 N.E.2d 240 [2012] ; People v. Briggs, 129 A.D.3d 1201, 1203, 13 N.Y.S.3d 255 [2015], lv. denied 26 N.Y.3d 1038, 22 N.Y.S.3d 167, 43 N.E.3d 377 [2015] ).
The trial evidence establishes that a police officer went to the victim's house in response to a domestic violence call. While en route, the responding officer was flagged down by a cable technician who had just been at the house and heard furniture being thrown, yelling between the victim and defendant, and the victim screaming at defendant to “get out.” The technician directed the responding officer to the victim's house. Upon arrival, the officer noticed markings on the victim's face and described her as frantic, crying, upset and scared. The victim, who was six months pregnant, yelled “he went out the back” and “he came in and beat [me] up.” In response to the officer's inquiry as to who did this to her, the victim identified defendant. The officer secured the house and saw that it was disheveled. The victim was taken to the hospital where she was treated for bruising and bite marks on her body. Later that afternoon, a police sergeant was dispatched to the victim's apartment based upon a report that defendant was seen entering the victim's house through a window. When the sergeant arrived, he saw a window screen on the ground lying against the house, and he observed defendant running on top of garbage cans. The sergeant and another officer who arrived at the scene pursued defendant and arrested him.
At the time of the assault, two orders of protection were in effect against defendant. They specifically directed defendant to stay away from the victim and her house and to refrain from, among other things, assaulting or harassing her. Defendant, notwithstanding his awareness of the orders of protection, did not dispute being at the victim's house. According to defendant, while arguing with the victim, he “smooshed her in the face.”
Viewing the evidence in a light most favorable to the People, we conclude that there was legally sufficient proof as to the element of intent. Based on the foregoing, the jury could infer that when defendant entered the victim's house, he intended to assault her in contravention of the orders of protection and in a manner that went beyond the stay-away aspects of the protective orders (see People v. Cajigas, 19 N.Y.3d at 702, 955 N.Y.S.2d 296, 979 N.E.2d 240 ; People v. Lewis, 5 N.Y.3d at 552, 807 N.Y.S.2d 1, 840 N.E.2d 1014 ; People v. Peterson, 118 A.D.3d at 1153, 988 N.Y.S.2d 271 ). Furthermore, considering the evidence in a neutral light and according due deference to the jury's opportunity to view the witnesses, we reject defendant's claim that the verdict as a whole was contrary to the weight of the evidence (see People v. Fomby, 101 A.D.3d 1355, 1356, 959 N.Y.S.2d 553 [2012], lv. denied 21 N.Y.3d 1015, 971 N.Y.S.2d 497, 994 N.E.2d 393 [2013] ; People v. Jones, 79 A.D.3d 1244, 1246, 912 N.Y.S.2d 746 [2010], lv. denied 16 N.Y.3d 832, 921 N.Y.S.2d 196, 946 N.E.2d 184 [2011] ; People v. Perser, 67 A.D.3d 1048, 1049, 889 N.Y.S.2d 107 [2009], lv. denied 13 N.Y.3d 941, 895 N.Y.S.2d 332, 922 N.E.2d 921 [2010] ).
Contrary to defendant's argument, County Court did not err in permitting the police officer who initially responded to the scene to testify as to the victim's statements identifying defendant as the assailant, as such statements were admissible as excited utterances (see People v. Anderson, 114 A.D.3d 1083, 1085, 981 N.Y.S.2d 200 [2014], lv. denied 22 N.Y.3d 1196, 986 N.Y.S.2d 417, 9 N.E.3d 912 [2014] ). Nor do we agree with defendant that the admission of these statements violated his constitutional right to confront witnesses. These statements were not testimonial in nature as “their purpose was to enable the police to meet an ongoing emergency and apprehend the perpetrator” (People v. Shaver, 86 A.D.3d 800, 802, 927 N.Y.S.2d 226 [2011], lv. denied 18 N.Y.3d 962, 944 N.Y.S.2d 491, 967 N.E.2d 716 [2012] ; see People v. Nieves–Andino, 9 N.Y.3d 12, 14–15, 840 N.Y.S.2d 882, 872 N.E.2d 1188 [2007] ). Defendant's additional argument that the testimony by the detective who interviewed the victim at the hospital and the caseworker with the Schenectady County Department of Social Services who met with the victim ran afoul of the Confrontation Clause is without merit inasmuch as these witnesses did not reveal any statements made to them by the victim (see People v. Lloyd, 118 A.D.3d 1117, 1121, 987 N.Y.S.2d 672 [2014], lv. denied 25 N.Y.3d 951, 7 N.Y.S.3d 280, 30 N.E.3d 171 [2015] ).
We also reject defendant's challenge to County Court's Molineux rulings. As a general matter, “evidence of uncharged crimes or prior bad actions may be admitted where they fall within the recognized Molineux exceptions—motive, intent, absence of mistake, common plan or scheme or identity—or where such proof is inextricably interwoven with the charged crimes, provide[s] necessary background or complete[s] a witness's narrative” (People v. Burnell, 89 A.D.3d 1118, 1120, 931 N.Y.S.2d 776 [2011] [internal quotation marks and citation omitted], lv. denied 18 N.Y.3d 922, 942 N.Y.S.2d 461, 965 N.E.2d 963 [2012] ). In situations involving domestic violence, prior bad acts are more likely to be relevant and probative “because the aggression and bad acts are focused on one particular person, demonstrating the defendant's intent, motive, identity and absence of mistake or accident” (People v. Burkett, 101 A.D.3d 1468, 1470, 957 N.Y.S.2d 417 [2012], lv. denied 20 N.Y.3d 1096, 965 N.Y.S.2d 792, 988 N.E.2d 530 [2013] [internal quotation marks and citation omitted] ). The testimony against defendant regarding prior instances of uncharged assault were properly admitted as relevant on the issues of intent and identity and provided the necessary background as to the relationship between defendant and the victim (see People v. Cox, 129 A.D.3d 1210, 1213, 10 N.Y.S.3d 727 [2015], lv. denied 26 N.Y.3d 966, 18 N.Y.S.3d 602, 40 N.E.3d 580 [2015] ; People v. Pham, 118 A.D.3d 1159, 1161, 987 N.Y.S.2d 687 [2014], lv. denied 24 N.Y.3d 1087, 1 N.Y.S.3d 14, 25 N.E.3d 351 [2014] ). The evidence of a separate incident of assault formed the basis of an order of protection issued against defendant and, thus, was properly admitted as probative because it “completed the narrative in which the criminal acts occurred [and] tended to show the absence of accident” (People v. Rodriguez, 306 A.D.2d 686, 688, 761 N.Y.S.2d 368 [2003], lv. denied 100 N.Y.2d 624, 767 N.Y.S.2d 407, 799 N.E.2d 630 [2003] ; see People v. Thibeault, 73 A.D.3d 1237, 1240–1241, 900 N.Y.S.2d 501 [2010], lv. denied 15 N.Y.3d 810, 908 N.Y.S.2d 170, 934 N.E.2d 904 [2010], cert. denied 562 U.S. 1293, 131 S.Ct. 1691, 179 L.Ed.2d 628 [2011] ). Furthermore, in light of County Court's limiting instructions, we find no error in County Court's Molineux rulings (see People v. Tinkler, 105 A.D.3d 1140, 1143, 963 N.Y.S.2d 415 [2013], lv. denied 21 N.Y.3d 1020, 971 N.Y.S.2d 502, 994 N.E.2d 398 [2013] ; People v. Poquee, 9 A.D.3d 781, 782, 780 N.Y.S.2d 247 [2004], lv. denied 3 N.Y.3d 741, 786 N.Y.S.2d 821, 820 N.E.2d 300 [2004] ).
Defendant's request for a missing witness charge based upon the People's failure to call the victim as a witness was properly denied. There is no dispute that the victim's testimony would have been material. The People, however, satisfied their burden of showing that the victim was unavailable. The victim was personally served with a subpoena for trial and, when she failed to appear when directed to, a material witness warrant was issued. Local law enforcement officials and an investigator continued to try to locate the victim during the duration of the trial but were unsuccessful. In light of the foregoing, County Court did not abuse its discretion in denying defendant's request for the missing witness charge (see People v. Lawing, 119 A.D.3d 1149, 1150–1151, 989 N.Y.S.2d 683 [2014], lv. denied 24 N.Y.3d 1121, 3 N.Y.S.3d 762, 27 N.E.3d 476 [2015] ; People v. Bateman, 241 A.D.2d 770, 772, 661 N.Y.S.2d 72 [1997], lv. denied 91 N.Y.2d 869, 668 N.Y.S.2d 567, 691 N.E.2d 639 [1997] ).
Turning to defendant's contention that he received the ineffective assistance of counsel, we note that defendant does not point to any specific instance of alleged deficient representation to support his conclusory claim. Based on our review of the record, which shows that counsel successfully precluded evidence, obtained the dismissal of one charge and effectively cross-examined witnesses, defendant was not deprived of meaningful representation (see People v. Thiel, 134 A.D.3d 1237, 1240–1241, 21 N.Y.S.3d 745 [2015], lv. denied 27 N.Y.3d 1156, 39 N.Y.S.3d 389, 62 N.E.3d 129 [2016] ; People v. Kenyon, 108 A.D.3d 933, 940, 970 N.Y.S.2d 638 [2013], lv. denied 21 N.Y.3d 1075, 974 N.Y.S.2d 324, 997 N.E.2d 149 [2013] ).
Finally, with regard to defendant's claim that the sentence is harsh and excessive, we decline to disturb it in the interest of justice given the absence of an abuse of discretion or extraordinary circumstances (see People v. Ero, 139 A.D.3d 1248, 1250, 32 N.Y.S.3d 674 [2016], lv. denied 28 N.Y.3d 929, 40 N.Y.S.3d 357, 63 N.E.3d 77 [2016] ; People v. Cook, 112 A.D.3d 1065, 1066, 977 N.Y.S.2d 769 [2013] ).
ORDERED that the judgment is affirmed.
PETERS, P.J., EGAN JR., LYNCH and ROSE, JJ., concur.