Opinion
2012-01-26
The PEOPLE of the State of New York, Respondent, v. David WOODROW, Appellant.
Adam G. Parisi, Schenectady, for appellant, and appellant pro se. Robert M. Carney, District Attorney (Carl Falotico of counsel), for respondent.
Adam G. Parisi, Schenectady, for appellant, and appellant pro se. Robert M. Carney, District Attorney (Carl Falotico of counsel), for respondent.
Before: PETERS, J.P., ROSE, KAVANAGH, McCARTHY and GARRY, JJ.
ROSE, J.
Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered February 5, 2009, upon a verdict convicting defendant of the crimes of burglary in the first degree (two counts), possession of burglar's tools, criminal mischief in the fourth degree, criminal possession of a weapon in the second degree (two counts), criminal possession of a weapon in the third degree and criminal possession of a weapon in the fourth degree.
The occupant of the second-floor apartment of a house located in a residential neighborhood heard banging on the front door of the house followed by banging on the apartment door and then the sound of a shot fired outside the apartment door. He retreated to the roof and screamed for help. Neighbors who heard and saw the victim on the roof called 911 and, while they were on the phone, saw a man exit the house. Responding police officers encountered defendant on a nearby street and, after a struggle, took him into custody because he matched the description provided to the 911 dispatcher. The officers found a short-handled, double-headed ax stuck in defendant's waistband and a loaded handgun in his pant's pocket. After a jury trial, defendant was convicted of two counts of burglary in the first degree, possession of burglar's tools, criminal mischief in the fourth degree, two counts of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree and criminal possession of a weapon in the fourth degree. Defendant was sentenced to concurrent prison terms of 20 years with five years postrelease supervision for the burglary in the first degree convictions and lesser concurrent sentences on the remaining convictions. Defendant appeals.
Initially, defendant contends that the proceedings before County Court were a nullity because the indictment was transferred to Supreme Court but then tried in County Court without any order transferring the case back to County Court. We cannot agree. Defendant's reliance on People ex rel. Dold v. Martin, 284 App.Div. 127, 131 N.Y.S.2d 12 [1954] is misplaced as it is based on former Code of Criminal Procedure § 22, which, in its current form ( see CPL 230.10), has been “rendered obsolete by the constitutional provision vesting administrative supervision of the courts in the Chief Administrator of the Courts” (Preiser, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 11A, CPL 230.10; see N.Y. Const., art. VI, § 28[b]; 22 NYCRR 200.14). As a superior court, County Court had trial jurisdiction upon the filing of the indictment ( see N.Y. Const., art. VI, § 11[a]; CPL 1.20[24]; 10.10[2][b]; 10.20[1][a]; 210.05; People v. Hart, 25 A.D.3d 815, 816, 807 N.Y.S.2d 681 [2006], lv. denied 6 N.Y.3d 834, 814 N.Y.S.2d 82, 847 N.E.2d 379 [2006] ), and the error defendant alleges, namely, the lack of a transfer order or notation in the record transferring the case from Supreme Court back to County Court, “is not jurisdictional in nature and is waived if not timely raised” ( People v. Wilson, 14 N.Y.3d 895, 897, 905 N.Y.S.2d 100, 931 N.E.2d 69 [2010]; see People v. Ott, 83 A.D.3d 1495, 1496, 921 N.Y.S.2d 450 [2011], lv. denied 17 N.Y.3d 808, 929 N.Y.S.2d 568, 953 N.E.2d 806 [2011] ). No challenge to the transfer having been made before the trial court, it was waived ( see CPL 470.05[2]; People v. Perez, 89 A.D.3d 1393, 1395, 932 N.Y.S.2d 628 [2011]; People v. Ott, 83 A.D.3d at 1496, 921 N.Y.S.2d 450).
Defendant next argues that the convictions for burglary in the first degree ( see Penal Law § 140.30[1], [3] ) and possession of burglar's tools ( see Penal Law § 140.35) are based on legally insufficient evidence because none of the witnesses was able to identify him as being present at the scene of the burglary. Again, we disagree. Three neighbors testified that they heard loud banging or the victim screaming and then observed a slender black male wearing a dark hooded sweatshirt with a dark bag leaving the house. They described the male leaving the house as having pulled the hood of the sweatshirt tightly around his face, exposing only the nose and part of the eyes. The witnesses also described him as wearing jeans and colorful sneakers, and having the bag slung across his shoulder in newsboy fashion with a light colored strap. Defendant was detained by the police within minutes on a nearby street and matched the description testified to by the neighbors, including having the hood on his sweatshirt pulled tightly around his face. The ax found on defendant was consistent with the hack marks on the partially destroyed door of the apartment, and a shell casing found on the second floor landing outside the apartment door matched defendant's gun, which was test fired and determined to be fully operable. A bullet hole consistent with having been fired from the door of the apartment was also located in the bathroom of the apartment. Viewing this evidence in a light most favorable to the People, a valid line of reasoning and permissible inferences support the jury's conclusion as to each of the burglary counts and the possession of burglar's tools ( see People v. Hampton, 64 A.D.3d 872, 874, 883 N.Y.S.2d 338 [2009], lv. denied 13 N.Y.3d 796, 887 N.Y.S.2d 546, 916 N.E.2d 441 [2009]; People v. Tillman, 57 A.D.3d 1021, 1024, 867 N.Y.S.2d 793 [2008]; People v. Bush, 266 A.D.2d 642, 643–644, 698 N.Y.S.2d 340 [1999], lv. denied 94 N.Y.2d 917, 708 N.Y.S.2d 356, 729 N.E.2d 1155 [2000] ). Also, upon independent consideration of the evidence in a neutral light, we find that the verdicts are not against the weight of the evidence ( see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]; People v. Tillman, 57 A.D.3d at 1024, 867 N.Y.S.2d 793; People v. Lopez, 9 A.D.3d 692, 694–695, 781 N.Y.S.2d 377 [2004] ).
As for defendant's claim of prosecutorial misconduct, most of the prosecutor's alleged misstatements were either properly dealt with by County Court's instructions to the jury or valid arguments as to the inferences the prosecutor believed the jury could draw from the evidence presented ( see People v. Dickson, 58 A.D.3d 1016, 1018, 872 N.Y.S.2d 216 [2009], lv. denied 12 N.Y.3d 852, 881 N.Y.S.2d 664, 909 N.E.2d 587 [2009]; People v. Racine, 132 A.D.2d 899, 900, 518 N.Y.S.2d 458 [1987], lv. denied 70 N.Y.2d 754, 520 N.Y.S.2d 1030, 514 N.E.2d 1382 [1987] ). We do agree, however, that the prosecutor improperly speculated during her summation about a conversation she imagined that the defendant might have had ( see People v. Edwards, 39 A.D.3d 1078, 1081, 834 N.Y.S.2d 575 [2007] ), and she inappropriately questioned a witness on redirect examination concerning defendant's viewing of the documentaries “Bowling For Columbine” and “Farenheit 9/11,” as well as defendant's opinion of former President Bush ( see People v. Shutter, 72 A.D.3d 1211, 1214, 899 N.Y.S.2d 389 [2010], lv. denied 14 N.Y.3d 892, 903 N.Y.S.2d 781, 929 N.E.2d 1016 [2010]; People v. Thornton, 4 A.D.3d 561, 563, 771 N.Y.S.2d 597 [2004], lv. denied 2 N.Y.3d 808, 781 N.Y.S.2d 307, 814 N.E.2d 479 [2004] ). These questions, objected to by defense counsel, were, in our view, an irrelevant and improper effort by the prosecutor to rebut the witness's description of defendant as a non-violent, religious person, and the court erred in permitting this line of questioning. Nevertheless, as the proof of defendant's guilt was overwhelming and these errors were isolated, they were harmless ( see People v. Nelson, 68 A.D.3d 1252, 1255, 890 N.Y.S.2d 189 [2009]; People v. Thornton, 4 A.D.3d at 563, 771 N.Y.S.2d 597; People v. Almarez, 2 A.D.3d 1151, 1152–1153, 770 N.Y.S.2d 165 [2003], lv. denied 2 N.Y.3d 761, 778 N.Y.S.2d 779, 811 N.E.2d 41 [2004] ).
Finally, in light of the violent nature of the crime and the danger it posed to the community, we are not persuaded by defendant's argument that the sentence was harsh or excessive. Nor has he identified any extraordinary circumstances that would justify its reduction ( see People v. Elwood, 80 A.D.3d 988, 990–991, 915 N.Y.S.2d 694 [2011], lv. denied 16 N.Y.3d 858, 923 N.Y.S.2d 420, 947 N.E.2d 1199 [2011]; People v. Wright, 1 A.D.3d 707, 709, 766 N.Y.S.2d 730 [2003], lv. denied 1 N.Y.3d 636, 777 N.Y.S.2d 34, 808 N.E.2d 1293 [2004] ). Defendant's remaining contentions have been considered and found to be either unpreserved or otherwise unavailing.
ORDERED that the judgment is affirmed.