State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: August 6, 2015 106501
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
ANGEL GARCIA,
Appellant.
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Calendar Date: June 3, 2015
Before: Peters, P.J., McCarthy, Egan Jr. and Rose, JJ.
__________
Catherine A. Barber, Albany, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan
Gudesblatt Lamb of counsel), for respondent.
__________
McCarthy, J.
Appeal from a judgment of the County Court of Ulster County
(Williams, J.), rendered October 18, 2013, upon a verdict
convicting defendant of the crime of burglary in the second
degree.
Defendant was indicted for the crime of burglary in the
second degree in relation to his alleged involvement in the
burglary of a residence in Ulster County, during which
approximately $56,000 was stolen. Defendant's alleged
accomplice, Eric Fehring, implicated him in the burglary during
an interview with police after a traffic stop on the day of the
incident. Police thereafter verified Fehring's story by visiting
the victim's house and conducting a controlled phone call between
defendant and Marcella Battista, Fehring's girlfriend at the
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time. Defendant was then arrested without a warrant five days
after the burglary. Following a jury trial, defendant was
convicted as charged, sentenced to a prison term of 15 years, to
be followed by five years of postrelease supervision, and ordered
to pay restitution in the amount of $27,500. Defendant now
appeals.
Defendant contends that his conviction is not supported by
legally sufficient evidence and is against the weight of the
evidence. As is relevant here, the People were required to
establish that defendant knowingly entered a dwelling with the
intent to commit a crime therein (see Penal Law § 140.25 [2]).
According to Fehring, he and defendant discussed burglarizing the
victim's home while at Battista's house on the day before the
burglary. They then drove to the victim's house the following
morning, entered through a broken window and took large amounts
of cash and a locked, blue safe containing more cash. Although
"[a] defendant may not be convicted solely on the basis of
accomplice testimony that lacks the support of 'corroborative
evidence'" (People v Rodriguez, 121 AD3d 1435, 1439 [2014], lv
denied 24 NY3d 1122 [2015], quoting CPL 60.22 [1]), sufficient
evidence was adduced at trial to "harmonize [Fehring]'s narrative
so as to provide the necessary corroboration" (People v Caban, 5
NY3d 143, 155 [2005] [internal quotation marks and citation
omitted]; see People v Miles, 119 AD3d 1077, 1079 [2014], lvs
denied 24 NY3d 1003 [2014]; People v Gilbo, 52 AD3d 952, 953
[2008], lv denied 11 NY3d 788 [2008]). Battista's testimony
corroborated Fehring's account of his conversation with defendant
on the day before the burglary. Video footage from a gas station
shows defendant and Fehring together on the morning of the
burglary, and Battista testified that she saw them together that
afternoon. Defendant also made admissions regarding the location
of the victim's house during a controlled call with Battista, a
recording of which was played for the jury. Police found large
amounts of cash and various goods on Fehring's person on the day
of the burglary. Additionally, several days later, police
recovered the blue safe from a lake in the area where Fehring
testified that he and defendant had driven and disposed of the
safe in a body of water. We therefore find that the People
provided "'enough nonaccomplice evidence to assure that the
accomplice[] . . . offered credible probative evidence'" (People
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v Miles, 119 AD3d at 1079, quoting People v Breland, 83 NY2d 286,
293 [1994]) that "tend[ed] to connect defendant to the crime
charged" (People v Besser, 96 NY2d 136, 143-144 [2001] [internal
quotation marks and citation omitted]; see People v Brown, 62
AD3d 1089, 1090 [2009], lvs denied 13 NY3d 742 [2009]). Further,
the jury was entitled to credit Fehring's testimony that
defendant jointly participated in the burglary and, deferring to
those credibility determinations, we do not find defendant's
conviction to be against the weight of the evidence (see People v
Brown, 62 AD3d at 1091).
Contrary to defendant's contention on appeal, County Court
correctly found that the police had probable cause to arrest him.
"Probable cause does not require proof sufficient to warrant a
conviction beyond a reasonable doubt but merely information
sufficient to support a reasonable belief that an offense has
been . . . committed by the person arrested" (People v Green, 127
AD3d 1473, 1473 [2015] [internal quotation marks and citations
omitted]; accord People v Shulman, 6 NY3d 1, 25 [2005], cert
denied 547 US 1043 [2006]). Here, such probable cause was
established by Fehring's implication of defendant in the
burglary, his ability to lead law enforcement to the victim's
house and the information provided by Fehring concerning the
hours leading up to the burglary (see People v Berzups, 49 NY2d
417, 427 [1980]; People v Green, 127 AD3d at 1474; People v
Nicholas, 118 AD3d 1183, 1187 [2014], lvs denied 24 NY3d 1121,
1122 [2015]). Further, defendant's subsequent arrest by his
parole officer, who was informed of the foregoing information by
the investigating officer, was proper under the fellow officer
rule (see People v Ramirez-Portoreal, 88 NY2d 99, 113-114 [1996];
see also People v Porter, 101 AD3d 44, 47 [2012], lvs denied 20
NY3d 1064, 1065 [2013]).
Defendant's argument that County Court was required to
instruct the jury that Battista was an accomplice, and that her
testimony was thus subject to the same corroboration requirements
as that of Fehring, is unpreserved and, in any event, without
merit. Given that the only evidence tying Battista to the
burglary was her presence for the initial conversation between
defendant and Fehring, there was no evidence that she "took part
in the preparation or perpetration of the [burglary] with intent
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to assist therein" (People v Weaver, 52 AD3d 138, 140 [2008]
[internal quotation marks and citation omitted], revd on other
grounds 12 NY3d 433 [2009]; see People v Moyer, 75 AD3d 1004,
1005 [2010]; compare People v Adams, 307 AD2d 475, 476-477
[2003], lv denied 1 NY3d 566 [2003]). Defendant's related
argument that he was deprived of the effective assistance of
counsel due to his attorney's failure to request a corroboration
instruction with respect to Battista's testimony thus also fails,
as "counsel cannot be faulted for failing to raise an issue that
has little or no chance of success" (People v Morrison, 127 AD3d
1341, 1345 [2015] [internal quotation marks and citation
omitted]; see People v Stultz, 2 NY3d 277, 287 [2004]; People v
Moyer, 75 AD3d at 1007). Defendant also asks us to employ "the
clarity of hindsight" to determine how counsel's cross-
examination of Fehring "might have been more effective" (People v
Thomas, 105 AD3d 1068, 1071 [2013] [internal quotation marks and
citation omitted], lv denied 21 NY3d 1010 [2013]), which we
decline to do. Moreover, defendant has not met his "high burden"
(People v Hobot, 84 NY2d 1021, 1022 [1995]) of "demonstrat[ing]
the absence of strategic or other legitimate explanations" for
the remainder of counsel's alleged shortcomings (People v Thomas,
105 AD3d at 1071 [internal quotation marks and citation omitted];
accord People v Baker, 14 NY3d 266, 270-271 [2010]).
Finally, while defendant received the maximum sentence
permitted by law for his conviction of burglary in the second
degree (see Penal Law §§ 70.02 [1] [b]; [3] [b]; 140.25), we find
no abuse of discretion by County Court in light of his extensive
criminal history (see People v Fomby, 119 AD3d 1293, 1293 [2014];
People v Edwards, 96 AD3d 1089, 1092 [2012], lv denied 19 NY3d
1102 [2012]). Additionally, the fact that Fehring received a
lesser sentence is not a compelling reason to reduce defendant's
sentence; Fehring, unlike defendant, entered a plea agreement
and, pursuant to it, testified against defendant (see generally
People v Selikoff, 35 NY2d 227, 234 [1974], cert denied 419 US
1122 [1975]; People v Morrison, 71 AD3d 1228, 1230 [2010], lvs
denied 15 NY3d 747, 754 [2010]; People v Manley, 70 AD3d 1125,
1125 [2010]).
Peters, P.J., Egan Jr. and Rose, JJ., concur.
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ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court