People v. Walker

191 A.D.3d 1154

142 N.Y.S.3d 648

The PEOPLE of the State of New York, Respondent,

v.Tyshawn M. WALKER, Appellant.

109471

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: January 6, 2021

Decided and Entered: February 25, 2021

Alexander W. Bloomstein, Hillsdale, for appellant.

P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.

Before: Egan Jr., J.P., Aarons, Pritzker, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Colangelo, J.

Appeal from a judgment of the County Court of Albany County (Young, J.), rendered March 20, 2017, upon a verdict convicting defendant of the crime of burglary in the second degree.

In December 2015, defendant was charged by indictment with burglary in the second degree stemming from allegations that he and two others broke into an apartment building in the City of Watervliet, Albany County and stole property from a second-floor apartment. Prior to trial, defendant moved to, among other things, suppress physical evidence discovered where defendant fled from the burglarized apartment building. Following a Mapp hearing to determine the admissibility of the evidence, County Court denied defendant's motion to suppress the evidence. A jury trial ensued, during which defendant twice moved for a trial order of dismissal based upon the People's failure to identify defendant as the person who committed the crime. County Court denied both motions, and defendant was thereafter convicted as charged. Defendant's subsequent motion to set aside the verdict pursuant to CPL 330.30 based upon, among other grounds, ineffective assistance of counsel was denied. County Court sentenced defendant to a prison term of 7½ years, to be followed by five years of postrelease supervision. Defendant appeals.

Defendant argues that the jury's verdict is not supported by legally sufficient evidence and is against the weight of the evidence. As to defendant's legal sufficiency claim, defendant moved for a trial order of dismissal upon the ground that the People failed to establish his identity as the burglar and therefore preserved this claim for our review. "When considering a challenge to the legal sufficiency of the evidence, we view the evidence in the light most favorable to the People and evaluate whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged" ( People v. Hernandez, 180 A.D.3d 1234, 1235, 116 N.Y.S.3d 799 [2020] [internal quotation marks and citations omitted], lv denied 35 N.Y.3d 993, 125 N.Y.S.3d 630, 149 N.E.3d 391 [2020] ; see People v. Kalabakas, 183 A.D.3d 1133, 1139, 124 N.Y.S.3d 448 [2020], lv denied 35 N.Y.3d 1067, 129 N.Y.S.3d 407, 152 N.E.3d 1209 [2020] ; People v. Watkins, 180 A.D.3d 1222, 1223–1224, 120 N.Y.S.3d 500 [2020], lvs denied 35 N.Y.3d 1026, 1030, 126 N.Y.S.3d 26, 149 N.E.3d 864 [2020] ).

As relevant here, "[a] person is guilty of burglary in the second degree when he [or she] knowingly enters or remains unlawfully in a building with intent to commit a crime therein, and when ... [t]he building is a dwelling" ( Penal Law § 140.25[2] ). Police responded to a report of a burglary in progress and observed defendant and another male fleeing the apartment building, with defendant in possession of what was determined to be property stolen during the burglary and a tool used to forcibly gain unlawful entry into the apartment. While being chased by police, defendant dropped the property on the curb, ran into and attempted to hide in the backyard of a house, and was arrested moments later. Accordingly, we find that, contrary to defendant's contention, the foregoing constituted legally sufficient proof from which the jury could find that he was the individual that committed the burglary (see People v. Saylor, 173 A.D.3d 1489, 1491–1492, 102 N.Y.S.3d 796 [2019] ; People v. Stetin, 167 A.D.3d 1245, 1248–1249, 90 N.Y.S.3d 353 [2018], lv denied 32 N.Y.3d 1178, 97 N.Y.S.3d 609, 121 N.E.3d 236 [2019] ).

Defendant's legal sufficiency challenge that the proof failed to demonstrate that he entered or remained unlawfully in the apartment was "not advanced via specific objection in his motion for a trial order of dismissal and, as a consequence, [is] unpreserved for our review" ( People v. Thomas, 169 A.D.3d 1255, 1256, 93 N.Y.S.3d 745 [2019], lvs denied 33 N.Y.3d 1033, 1036, 102 N.Y.S.3d 534, 126 N.E.3d 184 [2019] ; see People v. Baber, 182 A.D.3d 794, 795, 123 N.Y.S.3d 222 [2020], lv denied 35 N.Y.3d 1064, 129 N.Y.S.3d 365, 152 N.E.3d 1167 [2020] ). Nonetheless, in reviewing defendant's challenge to the weight of the evidence, "we necessarily determine whether all of the elements of the charged crime were proven beyond a reasonable doubt" ( People v. Rudge, 185 A.D.3d 1214, 1214, 126 N.Y.S.3d 247 [2020] [internal quotation marks, brackets and citations omitted], lv denied 35 N.Y.3d 1070, 129 N.Y.S.3d 393, 152 N.E.3d 1195 [2020] ; see People v. Brinkley, 174 A.D.3d 1159, 1160, 106 N.Y.S.3d 210 [2019], lv denied 34 N.Y.3d 979, 113 N.Y.S.3d 646, 137 N.E.3d 16 [2019] ; People v. Vega, 170 A.D.3d 1266, 1267, 95 N.Y.S.3d 620 [2019], lv denied 33 N.Y.3d 1074, 105 N.Y.S.3d 48, 129 N.E.3d 368 [2019] ). In conducting a weight of the evidence review, "we must view the evidence in a neutral light and determine first whether a different verdict would have been unreasonable and, if not, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence" ( People v. Kalabakas, 183 A.D.3d at 1141, 124 N.Y.S.3d 448 [internal quotation marks and citations omitted]; see People v. Drayton, 183 A.D.3d 1008, 1009, 123 N.Y.S.3d 298 [2020], lv denied 35 N.Y.3d 1065, 129 N.Y.S.3d 389, 152 N.E.3d 1190 [2020] ; People v. Hernandez, 180 A.D.3d at 1235, 116 N.Y.S.3d 799 ). In conducting this analysis, "[g]reat deference is accorded to the fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor" ( People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ; see People v. Cubero, 160 A.D.3d 1298, 1300, 75 N.Y.S.3d 658 [2018], affd 34 N.Y.3d 976, 113 N.Y.S.3d 1, 136 N.E.3d 747 [2019] ).

At trial, Brian Strock, a police officer for the City of Watervliet's Police Department, testified that, while on patrol on December 29, 2015, he responded to a call of a burglary in progress at a two-story residence located on the corner of 24th Street and 10th Avenue. He testified that, as he was walking to the house within minutes of receiving the call, the front door "comes flying open, and ... two males come flying out of the door of that house." Daniel Mahar, another police officer, and Walter Ellis, a police sergeant, had also responded to the call and were positioned directly in front of the house. One of the males was "holding a bunch of property in his arms." According to Strock, defendant "actually dropped the stuff right at the curb line in the street" and continued to run towards Mahar but eluded Mahar's grasp. Strock testified that he and Mahar gave chase and, when the two males split ways, he followed Mahar as Mahar chased defendant into an enclosed backyard of a nearby house. Strock testified that, when he arrived in the yard, he saw defendant, who "was hiding," "tucked down, crouched in the back left corner of the yard." Strock testified that defendant was "breathing heavily," "sweating" and "very nervous." After defendant was taken into custody, Strock and Mahar returned to the residence and observed that "[t]he apartment was completely ransacked," and the door to the apartment had been forced open. Strock testified that the items recovered from the curb included the victim's personal property, which she identified at trial, and a crowbar. Rubber gloves were also recovered, one from within the home and the other within the threshold of the home. Strock admitted that he did not see defendant's face until after he was apprehended, and he acknowledged that neither he nor the other officers found any object in defendant's possession that confirmed defendant's presence in the burglarized apartment.

Jonathan Williams, a neighbor who lived downstairs from the burglarized apartment, testified that he heard the doorbell ring about five times and then twice more, and, when he peeked through the blinds, he saw three men that he did not recognize on the stoop outside of the main front door. Soon thereafter, the doorbell rang a few more times, and he heard the front door crash open, followed by the sound of footsteps running up the stairs. Then Williams heard the door to the burglarized apartment crash open, followed by the sound of footsteps traversing the upstairs apartment. Thereafter, Williams observed that the door frame to the burglarized apartment was split apart and that the door was kicked in. He testified that he called the resident of the upstairs apartment and then called 911. Williams testified that he then heard two people coming down the steps and also heard the front door bang open and bang open again a couple of seconds later.

Mahar testified, as relevant here, that from the time that he started chasing defendant, he only lost sight of him for "15 to maybe 20 seconds max" when defendant turned into a narrow path leading to the fenced-in backyard. During that brief period, defendant was already in the backyard and was unable to get away. Mahar testified that he identified defendant as one of the males who exited the residence as he chased him down the street. Defendant "had the smaller stature" and was "wearing ... dark clothing." According to Mahar, defendant matched the description of the person that he observed running in front...