State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: April 9, 2015 106081
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
JAMES MORRISON,
Appellant.
________________________________
Calendar Date: February 17, 2015
Before: McCarthy, J.P., Egan Jr., Devine and Clark, JJ.
__________
Carolyn B. George, Albany, for appellant, and appellant pro
se.
P. David Soares, District Attorney, Albany (Vincent Stark
of counsel), for respondent.
__________
Egan Jr., J.
Appeal from a judgment of the Supreme Court (Breslin, J.),
rendered April 9, 2013 in Albany County, upon a verdict
convicting defendant of the crime of burglary in the third
degree.
On December 12, 2011, detective Mark Sauter responded to a
call of a burglary in progress at 20 Judson Street in the City of
Albany. When Sauter pulled up to that address, he observed a
blue Ford F-150 pickup truck backed up to the front steps of the
building. As Sauter began to walk towards the building, two men
— later identified as defendant and Lawrence Carden — emerged
from the front door carrying a large radiator. As a result of
this incident, defendant was charged in a single-count indictment
-2- 106081
with burglary in the third degree. At the conclusion of the
trial that followed, at which Sauter, Carden and the building's
owner, Douglas Pologa, appeared and testified, defendant was
found guilty as charged and thereafter was sentenced as a second
felony offender to a prison term of 3½ to 7 years. Defendant now
appeals.
We affirm. "A person is guilty of burglary in the third
degree when he [or she] knowingly enters or remains unlawfully in
a building with intent to commit a crime therein" (Penal Law
§ 140.20). In this regard, "[a] person 'enters or remains
unlawfully' in or upon premises when he [or she] is not licensed
or privileged to do so" (Penal Law § 140.00 [5]). The requisite
intent, in turn, "may be inferred from the circumstances of the
[defendant's] unlawful entry, unexplained presence on the
premises, and actions and statements when confronted by police or
the property owner" (People v Sabines, 121 AD3d 1409, 1410 [2014]
[internal quotation marks and citation omitted]; see People v
Peterson, 118 AD3d 1151, 1152 [2014], lvs denied 24 NY3d 1087
[2014]; People v Barringer, 54 AD3d 442, 443 [2008], lvs denied
11 NY3d 830, 836 [2008]).
Here, Carden testified that, beginning in early December
2011, defendant – who Carden generally knew from the neighborhood
– repeatedly asked Carden "to go with him to this house on Judson
[Street] and take some radiators out of there." Although Carden
initially refused, he eventually acquiesced to defendant's
requests and, on December 12, 2011, drove to the Judson Street
address with defendant. According to Carden, defendant indicated
that he had permission to remove the radiators from the building,
that they would be taking the radiators to a local charity and
that he would "split whatever [they] got from the place" with
Carden.1 Once the two arrived at the Judson Street location,
defendant instructed Carden to back his truck up to the steps of
1
As a follow-up question, Carden was asked by defense
counsel, "So you went into a building, took something that didn't
belong to you with the intent to sell it?", to which Carden
replied, "That's right." In response to counsel's ensuing
question, "And get money?", Carden replied, "Yes, we did."
-3- 106081
the building; as Carden was doing so, defendant went around to
the back of the premises and thereafter let Carden into the
building by way of the front door. Carden was in the process of
helping defendant remove "about three radiators" from the
building and load them into the back of Carden's truck when
Sauter arrived.
Sauter, in turn, testified that, after arriving at the
scene, he observed defendant and Carden coming out the front door
carrying a radiator in their hands. When Sauter instructed the
pair to put the radiator down and come towards him, Carden
complied; defendant remained where he was, "making head
movements" and "looking back and forth" at Sauter, the stairs and
down the street, before taking "a couple steps toward the top of
the staircase." Photographs taken at the scene and admitted into
evidence at trial depict, among other things, radiators in the
bed of Carden's pickup truck. Finally, Pologa testified that the
property – including the doors to the building and the gate to
the alleyway along the side of the house – was always locked,
that he did not know defendant (or Carden for that matter) and
that he did not give defendant (or anyone from the named charity)
permission to enter the property and remove radiators from
within. In our view, the foregoing testimony, together with the
reasonable inferences that may be drawn therefrom (see People v
Sturdevant, 74 AD3d 1491, 1492-1493 [2010], lv denied 15 NY3d 810
[2010]), constitutes legally sufficient evidence to support
defendant's conviction of burglary in the third degree. Further,
"upon independent consideration of the evidence in a neutral
light" (People v Woodrow, 91 AD3d 1188, 1190 [2012], lv denied 18
NY3d 999 [2012]), we are satisfied that the verdict is in accord
with the weight of the evidence.
Defendant next contends that he was deprived of a fair
trial by virtue of certain remarks made by the prosecutor during
closing argument. To the extent that defendant's objections to
the specific comments at issue have been preserved for our
review, we find them to be lacking in merit. When the prosecutor
suggested that defendant, in support of his theory that Carden
was the "criminal mastermind" behind the burglary, was "mak[ing]
stuff up," Supreme Court (Lamont, J.) – characterizing that
suggestion as "[b]urden shifting" – sustained defense counsel's
-4- 106081
objection, promptly instructed the jury to disregard the
prosecutor's comment and, during the course of its final charge
to the jury, reiterated that defendant was "not required to prove
that he [was] not guilty," thereby "ameliorat[ing] any prejudice
to defendant" (People v VanVorst, 118 AD3d 1035, 1037 [2014]).
As to the remaining statements, we find that the prosecutor's
remarks either were fair comment upon the evidence or, to the
extent that they were improper, did not reflect "a flagrant and
pervasive pattern of prosecutorial misconduct so as to deprive
[defendant] of a fair trial" (People v Green, 119 AD3d 23, 30
[2014], lv denied 23 NY3d 1062 [2014] [internal quotation marks
and citations omitted]).
Nor are we persuaded that Supreme Court erred in refusing
to charge the jury as to the lesser included offense of criminal
trespass in the third degree. "A defendant is entitled to a
lesser included offense charge upon request when (1) it is
impossible to commit the greater crime without concomitantly
committing the lesser offense by the same conduct and (2) there
[is] a reasonable view of the evidence to support a finding that
the defendant committed the lesser offense but not the greater"
(People v Nisselbeck, 85 AD3d 1206, 1208 [2011] [internal
quotation marks and citation omitted]; see People v Heslop, 48
AD3d 190, 193-194 [2007], lv denied 10 NY3d 935 [2008]). Here,
there is no question that "[c]riminal trespass in the third
degree is a lesser included offense of burglary in the third
degree inasmuch as it is impossible to commit the greater offense
without at the same time committing the lesser" offense (People v
Roseborough, 118 AD3d 1347, 1347 [2014], lv denied 24 NY3d 964
[2014] [internal quotation marks and citation omitted]; see
People v Alsaifullah, 96 AD3d 1103, 1104 [2012], lv denied 19
NY3d 994 [2012]). Hence, our inquiry distills to whether the
evidence adduced at trial, viewed in the light most favorable to
defendant (see People v Carota, 93 AD3d 1072, 1075 [2012]), would
support a finding that he committed criminal trespass in the
third degree but not burglary in the third degree. To our
analysis, the answer to that question is no.
The only element distinguishing criminal trespass in the
third degree (see Penal Law § 140.10 [a]) from burglary in the
third degree is the defendant's "intent to commit a crime
-5- 106081
therein" (Penal Law § 140.20).2 Simply put, in light of the
testimony offered by Carden and Pologa and the corresponding
"absence of any evidence suggesting a noncriminal purpose for
[defendant's] entry" (People v Martinez, 9 AD3d 679, 681 [2004],
lvs denied 3 NY3d 705, 709 [2004]; accord People v Miles, 55 AD3d
955, 956 [2008], lv denied 11 NY3d 928 [2009]), there is no
reasonable view of the evidence that would support a finding that
defendant entered the Judson Street address "without an intent to
commit any crime other than trespass" (People v Alsaifullah, 96
AD3d at 1104). Accordingly, Supreme Court did not err in denying
defendant's request to charge on this point.
Finally, inasmuch as defendant requested that the jury be
given an Allen charge and raised no objection to the charge
subsequently delivered by Supreme Court, defendant's present
claim – that the charge was coercive – is unpreserved for our
review (see People v Pomales, 49 AD3d 962, 964 [2008], lv denied
10 NY3d 938 [2008]). To the extent that defendant contends that
counsel's failure to object to the Allen charge constituted the
ineffective assistance of counsel, we need note only that counsel
cannot be faulted for failing to raise an issue "that has little
or no chance of success" (People v Brock, 107 AD3d 1025, 1029
[2013], lv denied 21 NY3d 1072 [2013] [internal quotation marks
and citations omitted]). Here, the court's Allen charge mirrored
the charge contained in the Criminal Jury Instructions (see
CJI2d[NY] Jury Issues–Jury Deadlocked]) and, therefore, does not
afford a basis upon which to grant the relief now requested (see
generally People v Briskin, 125 AD3d 1113, 1120-1121 [2015];
People v Davis, 103 AD3d 810, 812 [2013], lv denied 21 NY3d 1003
[2013]). Defendant's remaining contentions, including those
raised in his pro se brief, have been examined and found to be
2
"A person is guilty of criminal trespass in the third
degree when he [or she] knowingly enters or remains unlawfully in
a building or upon real property[] which is fenced or otherwise
enclosed in a manner designed to exclude intruders" (Penal Law
§ 140.10 [a]). "A person is guilty of burglary in the third
degree when he [or she] knowingly enters or remains unlawfully in
a building with intent to commit a crime therein" (Penal Law
§ 140.20).
-6- 106081
lacking in merit.
McCarthy, J.P., Devine and Clark, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court