The People, Respondent,v.Ronel Joseph, Appellant.BriefN.Y.September 14, 2016To be Argued by: MATTHEW E. K. HOWATT, ESQ. New York County Indictment No. 3120/10 New York Supreme Court Appellate Division – First Department THE PEOPLE OF THE STATE OF NEW YORK, Respondent, – against – RONEL JOSEPH, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT RICHARD M. GREENBERG, ESQ. EUNICE C. LEE, ESQ. Attorneys for Defendant-Appellant OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, New York 10007 (212) 402-4100 By: SETH GOODCHILD, ESQ. MATTHEW E. K. HOWATT, ESQ. matthew.howatt@weil.com WEIL GOTSHAL & MANGES LLP Of Counsel Printed on Recycled Paper i US_ACTIVE:\44388990\1\99995.4810 TABLE OF CONTENTS PAGE(S) TABLE OF AUTHORITIES .................................................................................. iii PRELIMINARY STATEMENT .............................................................................. 1 QUESTIONS PRESENTED .................................................................................... 3 INTRODUCTION .................................................................................................... 4 STATEMENT OF FACTS ....................................................................................... 6 A. The Basement Of The Greenleaf Deli ................................................... 6 B. Mr. Joseph Becomes Locked In The Basement Of The Greenleaf Deli And Then Is Arrested ................................................... 7 C. The Trial Court Refuses To Dismiss Or Reduce The Burglary Charges Based On The Prosecution’s Failure To Prove (1) “Dwelling” or (2) Intent ...................................................................... 10 D. Jury Deliberations, Verdict and Sentence ........................................... 11 ARGUMENT .......................................................................................................... 14 POINT I: Because The Second-Degree Burglary For Which Mr. Joseph Was Convicted Occurred In The Deli Basement, Which Connected Only To The Sidewalk (And Not To The Residences In Any Way), The Basement Did Not Constitute A “Dwelling” For The Purposes Of New York Penal Law Sections 140.00 And 140.25(2). .......................................................... 14 POINT II: The Verdict On The Second And Third-Degree Burglary Counts Was Legally Insufficient And Against The Weight Of The Evidence Where The Evidence Of Intent To Commit A Crime In The Basement Was Inadequate Given Mr. Joseph’s Explanation That He Went Into The Basement Of The Greenleaf Deli To Find His Dropped Cell Phone And Given The Surveillance Video’s Depiction Of His Actions While In The Basement. ..................................................................................... 22 CONCLUSION ....................................................................................................... 29 ii US_ACTIVE:\44388990\1\99995.4810 TABLE OF CONTENTS (continued) ADDENDA Statement Pursuant to Rule 5531. .................................................... A-1 Printing Specifications Statement. ................................................... A-3 iii US_ACTIVE:\44388990\1\99995.4810 TABLE OF AUTHORITIES Page(s) Cases Jackson v. Virginia, 443 U.S. 307 (1979) ...................................................................................... 15, 23 People v. Bailey, 13 N.Y.3d 67 (2009) .......................................................................................... 24 People v. Bleakley, 69 N.Y.2d 490 (1987) ................................................................................... 24, 25 People v. Cahill, 2 N.Y.3d 14 (2003) ............................................................................................. 24 People v. Contes, 60 N.Y.2d 620 (1983) ................................................................................... 15, 23 People v. Crooks, 95 A.D.3d 417 (1st Dep’t 2012) ................................................................... 19, 20 People v. Delamota, 18 N.Y.3d 107 (2011) ......................................................................................... 24 People v. Maisonet, 304 A.D.2d 674 (2d Dep’t 2003) .................................................................. 19, 21 People v. McCray, 102 A.D.3d 560 (1st Dep’t 2013), leave to appeal granted, 21 N.Y.3d 1006 (June 6, 2013) ..................................................................... 20, 21 People v. Patterson, 39 N.Y.2d 288 (1976) ........................................................................................ 23 People v. Quattlebaum, 91 N.Y.2d 744 (1998) ................................................................................... 17, 20 People v. Stevens, 109 N.Y. 159 (1888) .................................................................................... 23, 24 iv US_ACTIVE:\44388990\1\99995.4810 TABLE OF AUTHORITIES (continued) Quinn v. People, 71 N.Y. 561 (1878) ......................................................................................passim In re Winship, 397 U.S. 358 (1970) ............................................................................................ 15 Statutes N.Y. Crim. Proc. Law § 290.10(1) (McKinney 2009) ............................................ 10 N.Y. Crim. Proc. Law § 470.15(4)(b) (McKinney 2009) ........................................ 22 N.Y. Crim. Proc. Law § 470.15(5) (McKinney 2009) ............................................ 24 N.Y. Penal Law § 70.02 (McKinney 2010) ......................................................... 1, 16 N.Y. Penal Law § 70.04 (McKinney 2010) ......................................................... 1, 16 N.Y. Penal Law § 110.00 (McKinney 2010) ............................................................. 1 N.Y. Penal Law § 140.00(2) (McKinney 2010) ...................................................... 16 N.Y. Penal Law § 140.00(3) (McKinney 2010) ...................................................... 16 N.Y. Penal Law § 140.05 (McKinney 2010) ........................................................... 28 N.Y. Penal Law § 140.20 (McKinney 2010) ................................................. 1, 16, 23 N.Y. Penal Law § 140.25(2) (McKinney 2010) ...................................... 1, 15, 16, 23 N.Y. Penal Law § 140.30 (McKinney 2010) ........................................................... 21 N.Y. Penal Law § 205.10(2) (McKinney 2010) ........................................................ 1 N.Y. Penal Law § 205.30 (McKinney 2010) ............................................................. 1 Other Authorities N.Y. Const. art. I, § 6 ............................................................................................... 15 U.S. Const. amend. XIV .......................................................................................... 15 US_ACTIVE:\44388990\1\99995.4810 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – x THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- RONEL JOSEPH, Defendant-Appellant. : : : : : : : : : Ind. No. 3120/10 – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – x PRELIMINARY STATEMENT This is an appeal from a judgment of conviction rendered on December 6, 2010 by the Supreme Court, New York County (Ward, J., at trial and sentencing). Following a jury trial, Ronel Joseph was found guilty of one count of second- degree burglary, N.Y. Penal Law § 140.25(2) (McKinney 2010), one count of third-degree burglary, N.Y. Penal Law § 140.20 (McKinney 2010), one count of second-degree attempted escape, N.Y. Penal Law § 110.00/205.10(2) (McKinney 2010), and one count of resisting arrest, N.Y. Penal Law § 205.30 (McKinney 2010). Having previously been convicted of a violent felony, N.Y. Penal Law § 70.02 (McKinney 2010), Mr. Joseph was declared a second violent felony offender. N.Y. Penal Law § 70.04 (McKinney 2010). He was thus sentenced to terms of imprisonment of seven years with five years of post-release supervision on the second-degree burglary count, three and one half years to seven years on the third-degree burglary count, one year on the second-degree attempted escape 2 US_ACTIVE:\44388990\1\99995.4810 count, and one year on the resisting arrest count, with all sentences to be served concurrently. Timely notice of appeal was filed, and this Court granted Mr. Joseph’s motion for leave to appeal as a poor person on the original record and typewritten briefs. No stay of execution was sought. Mr. Joseph is presently serving his sentence in prison. 3 US_ACTIVE:\44388990\1\99995.4810 QUESTIONS PRESENTED 1. Should the trial court have dismissed the second-degree burglary charge against Mr. Joseph as legally insufficient where the prosecution failed to prove that the basement of the Greenleaf Deli was a “dwelling” under Penal Law §§ 140.00 and 140.25(2) because the only way to access that basement was through doors that opened onto a public street and, as a result, the basement had no connection with residences above the deli? 2. Was the verdict on the second and third-degree burglary counts legally insufficient and/or against the weight of the evidence where the evidence of intent to commit a crime in the basement was inadequate given Mr. Joseph’s explanation that he went into the basement of the Greenleaf Deli to find his dropped cell phone and given the surveillance video’s depiction of Mr. Joseph’s actions? 4 US_ACTIVE:\44388990\1\99995.4810 INTRODUCTION While walking down Amsterdam Avenue on Manhattan’s Upper West Side one night, Ronel Joseph inadvertently dropped his cell phone into open doors on the sidewalk and ultimately found himself trapped in a dark and strange place: the basement of a deli. Mr. Joseph had climbed down the stairs into the deli basement to search for that cell phone using a flashlight on his key-chain. After a few minutes of searching, Mr. Joseph heard the doors of the deli basement close above him. An employee of the deli, who, via a security camera, had seen Mr. Joseph shining his flashlight, locked Mr. Joseph in the basement. Mr. Joseph looked around for an exit but found none because the only way in or out of the basement was through the locked doors that opened onto the public sidewalk. When the doors opened, Mr. Joseph exited the basement onto the sidewalk and, after an altercation, was arrested by police for burglary. Unfortunately for Mr. Joseph, there were apartments above the deli. Even though Mr. Joseph had never come close to the apartments, the residents or their property, he was charged and convicted of, inter alia, second-degree burglary under Penal Law § 140.25(2). Defense counsel moved to dismiss this charge at trial on the grounds that Mr. Joseph had never entered a “dwelling”—a required element of second-degree burglary. The trial court’s ruling denying this motion, and Mr. Joseph’s subsequent conviction on this count, were legally incorrect. 5 US_ACTIVE:\44388990\1\99995.4810 The trial court committed legal error by construing the statutory provision in Penal Law § 140.00 defining “dwelling” to mean that, in all cases, if a part of a building is a “dwelling,” then the entire building is a “dwelling.” This ignored the New York Court of Appeals’ express holding that, “a part of a dwelling[] may be so severed from the rest of it” as to no longer constitute a dwelling. Quinn v. People, 71 N.Y. 561, 573 (1878) (emphasis added). Here, the deli basement should have been so-severed: Mr. Joseph’s actions never implicated the purpose underlying aggravated burglary of a “dwelling”—first enunciated in Quinn— because there was never any possibility that a resident in his/her home could have been terrorized or endangered defending his or her property. With only an external door in and out of the deli basement, Mr. Joseph was either in the deli basement (where no one lived and which did not contain any resident’s property) or on the public street, which unquestionably is not part of any building, let alone a “dwelling.” For this reason, Mr. Joseph’s conviction for second-degree burglary should be reversed. Furthermore, Mr. Joseph’s convictions for second and third-degree burglary were both against the weight of the evidence and legally insufficient. First, as previously noted, the prosecution failed to prove that the deli basement was a “dwelling”; and, thus, failed to prove all of the elements of second-degree burglary. Second, pursuant to Penal Law §§ 140.20 and 140.25(2), for both second 6 US_ACTIVE:\44388990\1\99995.4810 and third-degree burglary, the prosecution was required, but failed, to prove beyond a reasonable doubt that Mr. Joseph had the “intent to commit a crime” in the deli basement. Any inference of such “intent” is belied by Mr. Joseph’s explanation that he was searching for his cell phone in the deli basement, which was corroborated by testimony of the arresting officer that he vouchered Mr. Joseph’s phone, and the surveillance video’s depiction of Mr. Joseph’s actions while in the basement. Accordingly, the jury’s convictions on both second and third-degree burglary should be reversed. STATEMENT OF FACTS A. The Basement Of The Greenleaf Deli The arrest of Ronel Joseph (described below) resulted from events in the sidewalk basement of the Greenleaf Deli, located on Manhattan’s Upper West Side at Amsterdam Avenue. T. 261-62, 322.1 The deli basement served as storage for the Greenleaf Deli’s soft drinks and waters. T. 326. The retail space of the Greenleaf Deli was located above the deli basement at street level. T. 262. Six floors of apartments were located above the Greenleaf Deli. T. 263. As the trial judge observed, “there was no testimony that you could get to the apartments” from the deli basement. T. 353. 1 The transcript of the trial that took place on December 2, 3 and 6, 2010, will be cited as “T.” The transcript of the sentencing that took place on January 13, 2011, will be cited as “S.” 7 US_ACTIVE:\44388990\1\99995.4810 It was undisputed at trial that the only way to enter or exit the deli basement was through two doors that were flush with the sidewalk. T. 269-70, 325-27. The deli basement doors opened outwards onto the street in front of the Greenleaf Deli, and led to a staircase that went down into the basement. T. 269-70, 325-27. The doors were only locked when the Greenleaf Deli was closed. T. 348. An iron rod was used to prop the doors open for the Greenleaf Deli employees to access their storage space in the deli basement. T. 326-27. B. Mr. Joseph Becomes Locked In The Basement Of The Greenleaf Deli And Then Is Arrested At approximately 8:30 p.m. on the evening of June 28, 2010 (T. 329-30), Mr. Joseph finished work and was walking to meet a friend. T. 369-70. On the way to meet his friend, Mr. Joseph walked down Amsterdam Avenue and past the Greenleaf Deli. Id. Both Mr. Joseph and Mr. Shorojit Roy, an employee of the Greenleaf Deli, testified that the doors to the deli basement were open as Mr. Joseph passed the Greenleaf Deli. T. 332, 361, 372. Mr. Roy explained that the doors were open because an employee had gone down to the deli basement to get bottled water for the deli. T. 332. As Mr. Joseph explained, while he passed the Greenleaf Deli, he took out his Blackberry Curve cell phone to call his friend. T. 369-71. He lost his grip and dropped the phone through the doors into the deli basement. T. 361, 370-71, 374. 8 US_ACTIVE:\44388990\1\99995.4810 As Mr. Joseph testified, immediately after dropping his phone, he went down the stairs into the deli basement to find it. T. 361, 375-76. Mr. Joseph had a flashlight with him on his key-chain, and he began to shine it in the dark deli basement to find his phone. T. 362-63, 377-78. Mr. Joseph testified that he did not find his phone in the deli basement. T. 363, 379-380. Police Officer Bradley Gore, the arresting officer, later vouchered a phone and a flashlight. T. 283, 289. Officer Gore initially testified that he “believe[d]” that the phone was recovered from Mr. Joseph. T. 290. However, he subsequently admitted that the voucher he filled out for the phone did not note where he had recovered the phone and, therefore, did not indicate that the phone had been recovered from Mr. Joseph. T. 290-92. According to Mr. Joseph, three to four minutes after entering the basement to look for his phone, the doors above him closed. T. 361-62, 379. Mr. Roy testified that he locked the doors after his closed-circuit television camera in the deli basement showed Mr. Joseph searching with his flashlight. T. 332, 335, 349. Mr. Roy authenticated a CD copy of the closed-circuit television video taken of Mr. Joseph, and it was shown to the jury. T. 338, 342; P. Ex. 10. That video does not show Mr. Joseph taking or even touching any merchandise in the deli basement; the video only shows Mr. Joseph looking around with his flashlight. P. 9 US_ACTIVE:\44388990\1\99995.4810 Ex. 10. Nor was there any allegation that Mr. Joseph took anything from the deli basement. T. 348. After the doors closed, Mr. Joseph testified that he went up the stairs and attempted to explain to the person who had closed the doors that he was looking for his fallen phone. T. 363, 379-80. Mr. Roy—a Bengali speaker who admitted to only understanding “a little” English and who testified through an interpreter— testified that he did not hear Mr. Joseph say that he was looking for his phone. T. 322-23, 349. During Mr. Joseph’s search in the deli basement, he never found his phone. See T. 381. During the approximately eleven minutes that he remained in the deli basement, Mr. Joseph testified that he focused on finding a way out of the basement. T. 380-82. As the only exit from the deli basement was locked and Mr. Roy would not open the door, despite Mr. Joseph’s requests, Mr. Joseph was forced to wait until the doors opened. T. 349, 363. After locking the doors, Mr. Roy returned to the inside of the Greenleaf Deli, where his younger colleague who, as Mr. Roy testified, “speaks better English than [he] do[es],” called the police. T. 335-36. Officer Gore and his partner, Officer Alberto Natal, responded to the call and opened one of the doors. T. 270-71, 307. At Officer Gore’s request, Mr. Joseph climbed up the stairs and exited the deli basement, where he was placed on the ground, handcuffed and arrested for burglary. T. 272-73, 307-08, 364, 382-83. Officer Gore testified that 10 US_ACTIVE:\44388990\1\99995.4810 when Mr. Joseph was handcuffed and placed under arrest for burglary he said: “I’m not going to jail.” T. 273.2 As Officer Gore took Mr. Joseph to the police car, Officer Gore claimed that Mr. Joseph repeated the foregoing statement. T. 276. Mr. Joseph testified that, during that time, he told Officer Gore that he had gone into the deli basement to look for his fallen phone. T. 365. Officers Gore and Natal did not recall Mr. Joseph offering his explanation for being in the deli basement. T. 290-91, 315. An altercation ensued near the police car on Amsterdam Avenue, and Officer Gore stopped Mr. Joseph, who had moved away from the car, and sprayed him with mace. T. 278-79, 313-14, 365-67. As a result of the incident, Mr. Joseph suffered a broken arm. T. 280, 367-68. Eventually, Mr. Joseph was transported from the Greenleaf Deli to the police precinct. See T. 282. C. The Trial Court Refuses To Dismiss Or Reduce The Burglary Charges Based On The Prosecution’s Failure To Prove (1) “Dwelling” or (2) Intent Following pre-trial motions and jury selection, the trial began on December 2, 2010. At the close of the prosecution’s case on December 3, 2010, defense counsel moved to dismiss the burglary charges pursuant to N.Y. Crim. Proc. Law § 290.10(1) (McKinney 2009) on two grounds: (1) the lack of evidence of Mr. Joseph’s intent to commit a crime in the deli basement; and (2) the deli basement 2 Mr. Joseph stated that he never told Officer Gore that he did not want to go to jail. T. 383. Mr. Joseph also testified that he had previously been convicted of several misdemeanors and three prior felonies. T. 369. 11 US_ACTIVE:\44388990\1\99995.4810 did not constitute a “dwelling.” T. 351-52. Defense counsel argued that neither the video nor the testimony showed that Mr. Joseph had any intent to commit a crime while he was in the deli basement—in particular, there was no evidence that Mr. Joseph took, or even attempted to take, anything from the deli basement. Id. With respect to the deli basement not being a “dwelling,” defense counsel argued: “[T]here’s just no testimony whatsoever that you can get to the building or to the deli from the basement. You have to come up through these two doors, the storm doors, if I can call them that, and walk around and go through the main entrance to the deli.” T. 352-53. Alternatively, defense counsel asked for a reduction of “both” burglary charges to “trespass.” T. 354-55. The trial court denied Mr. Joseph’s motion to dismiss. T. 357. The trial court relied upon the statutory definition of “dwelling” and its interpretation that the separation of the apartments from the deli basement did not “negate” that the deli basement was part of the “dwelling.” T. 353, 357. “[O]n that basis,” the trial court also refused to reduce the charges. T. 357. After Mr. Joseph testified, his counsel renewed the defense’s motion to dismiss, and the trial court summarily denied the motion. T. 391. D. Jury Deliberations, Verdict and Sentence Even after being shown the video of Mr. Joseph in the deli basement during trial, the jury asked to rewatch the video several times during its deliberations. During its initial deliberations on December 3, 2010, the jury requested “to watch 12 US_ACTIVE:\44388990\1\99995.4810 the video on the courtroom monitors” because the jurors “fe[lt] perhaps that they [were] better quality.” T. 487. While the monitors did not work, the tape was replayed on the courtroom video screen. T. 491-93. The jury also asked “that Mr. Joseph physically hold the flashlight in evidence in the manner shown in the video in front of the jury.” T. 489-90. The judge denied that request because it was “not demonstrated during the trial.” T. 490, 492. On the second day of deliberations, December 6, 2010, the jurors requested and were allowed to take the video equipment into the jury room to enable them to “see the video in slow motion or possibly frame by frame.” T. 509-14. Following their deliberations that day, the jurors convicted Mr. Joseph on second and third-degree burglary, second-degree attempted escape and resisting arrest. T. 515-17. At sentencing on January 13, 2011, defense counsel moved to set aside the verdict as against the weight of the evidence, arguing that the deli basement was not a “dwelling.” S. 7-8. The trial court summarily denied the motion. S. 8-9. Because Mr. Joseph had previously been convicted of a violent felony (see S. 3-4), Mr. Joseph’s conviction for second-degree burglary meant that he was declared a second violent felony offender. Cf. S. 11-12. Mr. Joseph received a determinate sentence of seven years for his second-degree burglary conviction. S. 11-12. Mr. Joseph also received sentences of three and one half years to seven years on the third-degree burglary count, one year on the second-degree attempted escape 13 US_ACTIVE:\44388990\1\99995.4810 count, and one year on the resisting arrest count, with all sentences to be served concurrently. Uniform Sentence & Commitment, dated February 22, 2011. 14 US_ACTIVE:\44388990\1\99995.4810 ARGUMENT POINT I BECAUSE THE SECOND-DEGREE BURGLARY FOR WHICH MR. JOSEPH WAS CONVICTED OCCURRED IN THE DELI BASEMENT, WHICH CONNECTED ONLY TO THE SIDEWALK (AND NOT TO THE RESIDENCES IN ANY WAY), THE BASEMENT DID NOT CONSTITUTE A “DWELLING” FOR THE PURPOSES OF NEW YORK PENAL LAW SECTIONS 140.00 AND 140.25(2). The court erred in finding that Mr. Joseph had burglarized a “dwelling” and, thus, that he had committed second-degree burglary. The trial court ignored that, “a part of a dwelling[] may be so severed from the rest of it” as to no longer constitute a “dwelling.” Quinn v. People, 71 N.Y. at 573 (emphasis added). This case warrants such severance. The only place Mr. Joseph entered was the deli basement. He entered neither the deli nor the apartments above the deli. As defense counsel emphasized in making its unsuccessful (but legally correct) motion to dismiss the second-degree burglary charge, the deli basement connected only to the public sidewalk and not the apartments. Therefore, Mr. Joseph did not and could not have confronted any resident or made that person defend his/her property in his/her home. Accordingly, the policy behind elevating Mr. Joseph’s actions to a higher degree of culpability was not implicated. The mere happenstance that apartments existed above the deli does not merit a conviction for second-degree burglary. 15 US_ACTIVE:\44388990\1\99995.4810 In order for a conviction to be legally sufficient, the prosecution must prove each element of the crime beyond a reasonable doubt; otherwise, the conviction violates federal and state due process rights. U.S. Const. amend. XIV; N.Y. Const. art. I, § 6; In re Winship, 397 U.S. 358, 364 (1970) (“Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”). Here, Mr. Joseph’s conviction for second- degree burglary pursuant to Penal Law § 140.25(2) violated his due process rights. Even “‘viewing the evidence in the light most favorable to the prosecution, [no] rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt’” because the prosecution failed to present proof beyond a reasonable doubt of the required element that the deli basement was a “dwelling.” People v. Contes, 60 N.Y.2d 620, 621 (1983) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The trial court therefore erred as a matter of law when it denied Mr. Joseph’s motion to dismiss the charge of second-degree burglary. The relevant statutory provision regarding second-degree burglary states: “A person is guilty of burglary in the second degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein, and when: . . . 2. The building is a dwelling.” N.Y. Penal Law § 140.25(2) (McKinney 16 US_ACTIVE:\44388990\1\99995.4810 2010).3 The sole statutory factor that elevated Mr. Joseph’s conviction to second- degree burglary—and resulted in him being declared a second violent felony offender and receiving a determinate sentence of seven years (N.Y. Penal Law §§ 70.02, 70.04 (McKinney 2010))—was the trial court’s erroneous finding that the deli basement was a “dwelling.” The trial court expressly denied the motion to dismiss initially (and presumably the renewed motions that followed, which were summarily denied) because it interpreted the definition of “dwelling” to mean that if a part of a building is a “dwelling,” then the entire building is a “dwelling.” As the trial judge stated: A dwelling is a building which is usually occupied by a person lodging therein at night. [N.Y. Penal Law § 140.00(3) (McKinney 2010).] And the definition of a building is the normal definition, but also includes: Where a building consists of two or more units separately secured or occupied, each unit shall be deemed both a separate building in itself and part of the main building. [N.Y. Penal Law § 140.00(2) (McKinney 2010).] So, the definition within the statute seems to conclude, and the case law that I looked up last night seems to conclude, that the fact that there are separate apartments doesn’t negate the fact that this is a dwelling even if there was no testimony that you could get to the 3 Mr. Joseph was also convicted of third-degree burglary, which has the same definition as second-degree burglary, except without any of the aggravating factors in the statute: “A person is guilty of burglary in the third degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein.” N.Y. Penal Law § 140.20 (McKinney 2010). 17 US_ACTIVE:\44388990\1\99995.4810 apartments, because there was testimony this was all part of one building. T. 353; see also T. 357 (denying motion to dismiss “based on the definition of building and dwelling that appears both in the statute and in the case law”); see also T. 391 (denying renewed motion to dismiss without reasons); S. 8-9 (denying motion to set aside verdict because “the evidence in this case” satisfied “the definition of ‘dwelling’”). The trial court’s foregoing application of “dwelling” to the facts here incorrectly applied the statutory definitions. The trial court ignored that, as the New York Court of Appeals has said, where part of a building with “dwellings” is “rented to different persons for purposes of trade or commerce,” then, that “part of a dwelling-house may be so severed from the rest of it,” as to not constitute a “dwelling.” Quinn v. People, 71 N.Y. at 573 (emphasis added). Even though the Court of Appeals ultimately found that the building in Quinn was a “dwelling,” the application of the standard enunciated in Quinn demonstrates that the Greenleaf Deli basement was not a “dwelling.” As the Court of Appeals first recognized in Quinn, and which remains the law today, the purpose for “the increased penalty for burglary of a dwelling [is] . . . to prevent . . . ‘midnight terror’ and the ‘danger to human life, growing out of the attempt to defend property from depredation.’” People v. Quattlebaum, 91 N.Y.2d 744, 747 (1998) (quoting Quinn, 71 N.Y. at 567). 18 US_ACTIVE:\44388990\1\99995.4810 In Quinn, unlike here, it was conceivable that the burglar could have confronted and “terrorized” a resident somewhere on the grounds of the building. There, the defendant burglarized a ground-floor store in Staten Island and above that store were apartments in which one of the shop-owners (and others) lived. 71 N.Y. at 564-65. The Court of Appeals emphasized that, in Quinn, “To pass from the rooms used for business purposes to the rooms used for living in, it was necessary to go out of doors into a yard fenced in, and from thence up stairs.” Id. at 565. Even without an internal connection between the residences and shop, the shop-owner, or any other resident, could have encountered a burglar in their joint fenced-in yard. Also, had that happened, the shop-owner, who was also a resident, likely would have felt the need to “defend [his] property” in his/her yard. Id. at 567. In contrast, unlike the resident/shop-keeper in Quinn, because there was no evidence that anything in the deli basement belonged to any resident, the goods in the deli basement were of no concern to the residents of Amsterdam Avenue. Even if a resident wished to be a good samaritan or was simply a by-stander, Mr. Joseph did not and could not have ever “terrorized” a resident in his/her home while exiting or entering the deli basement. The trial court found that, “there was no testimony that you could get to the apartments” internally from the deli basement—indeed, the Greenleaf Deli was in the way. T. 353; see also T. 269-70, 19 US_ACTIVE:\44388990\1\99995.4810 325-27. More critically, as defense counsel argued in the motion to dismiss, “there’s just no testimony whatsoever that you can get to the building or to the deli from the basement. You have to come up through these two doors, the storm doors, if I can call them that, and walk around and go through the main entrance to the deli.” T. 352-53. Therefore, Mr. Joseph could have encountered residents only on the public sidewalk on Amsterdam Avenue, which is unquestionably outside of the “dwelling” at Amsterdam Avenue. Cf. People v. Maisonet, 304 A.D.2d 674, 675 (2d Dep’t 2003) (hallway to an apartment building was not a “dwelling” where the prosecution failed to show that it was “inaccessible to the public”) (emphasis added). Quinn’s progeny also support this interpretation of the statute. For instance, in People v. Crooks, this Court summarily found that the burglary of the basement of a housing authority building satisfied the “dwelling” element. 95 A.D.3d 417, 417-18 (1st Dep’t 2012). In contrast to the instant case, there was no discussion in Crooks showing that the alleged burglar could have been located only in the basement or have been on a public street. Thus, unlike for the residents in this case, it is conceivable that a burglar escaping on the lawn of the housing project in Crooks could have disturbed a resident while on the grounds of his/her home. Additionally, whereas the residents had no demonstrable relationship with the commercial goods in the deli basement, the residents of the project in Crooks 20 US_ACTIVE:\44388990\1\99995.4810 would possibly have defended what was likely either their property in the project basement or, at least, goods used to maintain the project building in which they lived. Also, in People v. McCray, this Court observed that a “museum, which was ‘under the same roof’ as [a] hotel, [was] a dwelling irrespective of whether there was ‘internal communication’ between the two.” 102 A.D.3d 560, 560 (1st Dep’t 2013) (quoting Quattlebaum, 91 N.Y.2d at 747), leave to appeal granted, 21 N.Y.3d 1006 (Jun. 6, 2013). This Court did not discuss the specifics of the building at issue in McCray. Certainly though, the museum and hotel complex in McCray presented a setting featuring considerable common space, including possible joint entrance and exit spaces—all of which were areas of the premises where an unsuspecting hotel guest (i.e., a resident) could have been “terrorized” by a burglar fleeing from the adjoining museum. Conversely, there was no evidence that the deli basement, as storage space for the Greenleaf Deli, was itself common space or even linked to any common space, including any common entrance or exit. Thus, Mr. Joseph did not and would not have confronted any residents while in the deli basement. His only possible contact with them would have occurred 21 US_ACTIVE:\44388990\1\99995.4810 outside their “dwelling” on the public street, which plainly distinguishes this case from McCray.4 As People v. Maisonet, 304 A.D.2d at 675, shows—contrary to the trial judge’s erroneous holding in Mr. Joseph’s case—even if parts of a building are “dwellings,” the rest of the building is not always considered part of those “dwellings.” In Maisonet, “the defendant did not enter the victim’s apartment, but remained in the adjacent hallway.” Id. The court held that the prosecution failed to show that the hallway was “inaccessible to the public” where there was no “indication that the door to the building was locked, entry was controlled by a buzzer, ‘no trespassing’ signs were present, or that there were any other indicia that access to the building or hallway was restricted to tenants.” Id. Accordingly, even though the hallway in Maisonet was under the same roof and within the same walls as the apartments, the prosecution did not prove the “dwelling” element of first- degree burglary. Id.; see also N.Y. Penal Law § 140.30 (McKinney 2010). Without that element, the court vacated the defendant’s conviction for first-degree burglary and dismissed the charge. 304 A.D.2d at 674-75. The Court should similarly vacate Mr. Joseph’s conviction on second-degree burglary and dismiss that charge. 4 In any event, the holding in McCray may not stand as leave to appeal to the Court of Appeals was granted. 21 N.Y.3d 1006 (Jun. 6, 2013). 22 US_ACTIVE:\44388990\1\99995.4810 For the foregoing reasons, unlike in Quinn and its progeny, the prosecution did not show that Mr. Joseph’s actions ever implicated the statutory policy of protecting residents of “dwellings” and their property. Thus, even assuming arguendo, that Mr. Joseph did burglarize the deli basement (which, as noted below (see pp. 22-8, infra), the evidence does not support), he did not burglarize a “dwelling” under Penal Law § 140.00. Without this necessary element, the trial court erred by denying the motion to dismiss the charge of second-degree burglary and that conviction should be reversed. See N.Y. Crim. Proc. Law § 470.15(4)(b) (McKinney 2009). POINT II THE VERDICT ON THE SECOND AND THIRD-DEGREE BURGLARY COUNTS WAS LEGALLY INSUFFICIENT AND AGAINST THE WEIGHT OF THE EVIDENCE WHERE THE EVIDENCE OF INTENT TO COMMIT A CRIME IN THE BASEMENT WAS INADEQUATE GIVEN MR. JOSEPH’S EXPLANATION THAT HE WENT INTO THE BASEMENT OF THE GREENLEAF DELI TO FIND HIS DROPPED CELL PHONE AND GIVEN THE SURVEILLANCE VIDEO’S DEPICTION OF HIS ACTIONS WHILE IN THE BASEMENT. Both of Mr. Joseph’s burglary convictions were based on legally insufficient evidence and, for the same reasons, were against the weight of the evidence. First, as explained above (see pp. 14-22, supra), the prosecution failed to prove that the deli basement was a “dwelling”; and, thus, failed to prove all of the elements of second-degree burglary beyond a reasonable doubt. Second, for both second and third-degree burglary, the prosecution failed to prove beyond a reasonable doubt 23 US_ACTIVE:\44388990\1\99995.4810 that Mr. Joseph had the “intent to commit a crime” in the deli basement. N.Y. Penal Law §§ 140.20, 140.25(2) (McKinney 2010); see also T. 460-62 (jury charge regarding second-degree burglary), T. 467 (jury charge regarding third-degree burglary). As defense counsel argued during the defense’s unsuccessful motion to dismiss, neither the Greenleaf Deli’s video nor any of the testimony showed that Mr. Joseph had any intent to commit a crime while he was in the deli basement— in particular, there was no evidence that Mr. Joseph took or even attempted to take anything. T. 351-52. In fact, the evidence supported Mr. Joseph’s explanation that he went into the basement to find his dropped cell phone. Accordingly, upon review of the evidence, the Court should reverse both of the burglary charges. As mentioned above (see p. 15, supra), “The standard for reviewing the legal sufficiency of evidence in a criminal case is whether ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Contes, 60 N.Y.2d at 621 (quoting Jackson, 443 U.S. at 319 (emphasis in original)). “In New York, the prosecution is at all times required to prove, beyond a reasonable doubt, the facts bearing the defendant’s intent.” People v. Patterson, 39 N.Y.2d 288, 302 (1976). “Where a particular intent is an ingredient of the crime,” as it is here with both burglary charges, “the mere doing of the prohibited act does not constitute the crime unless accompanied with unlawful intent.” People v. Stevens, 109 N.Y. 159, 24 US_ACTIVE:\44388990\1\99995.4810 163 (1888); see also People v. Bailey, 13 N.Y.3d 67, 71(2009) (“In viewing the facts in this case we hold that the proof was legally insufficient as to intent.”). Alternatively, the court must review the weight of the evidence to determine whether, “based on all the credible evidence, a different finding would not have been unreasonable.” People v. Bleakley, 69 N.Y.2d 490, 495 (1987); see also N.Y. Crim. Proc. Law § 470.15(5) (McKinney 2009).5 “‘[E]ven if all the elements and necessary findings are supported by some credible evidence, the court must examine the evidence further.’” People v. Cahill, 2 N.Y.3d 14, 57-58 (2003) (quoting Bleakley, 69 N.Y.2d at 495). As the Court of Appeals has explained, the weight of the evidence analysis requires, the court to affirmatively review the record; independently assess all of the proof; substitute its own credibility determinations for those made by the jury in an appropriate case; determine whether the verdict was factually correct; and acquit a defendant if the court is not convinced that the jury was justified in finding that guilt was proven beyond a reasonable doubt. People v. Delamota, 18 N.Y.3d 107, 116-17 (2011) (internal citations omitted). The standard thus permits the Appellate Division to “serve, in effect, as a second jury.” Id. at 117. “There is nothing the least bit novel about Appellate Division weight of the evidence reversals.” Cahill, 2 N.Y.3d at 59 (citing cases). Where, as here, “the trier of fact has failed to give the evidence the weight it should be 5 Mr. Joseph is not appealing his convictions for attempted escape or resisting arrest. 25 US_ACTIVE:\44388990\1\99995.4810 accorded, then the appellate court may set aside the verdict.” Bleakley, 69 N.Y.2d at 495 (citation omitted). The jury failed to give due weight to Mr. Joseph’s explanation that he entered the deli basement and searched with a flashlight for only three to four minutes to find his cell phone. T. 362, 377-79. Also, as Mr. Joseph explained, after he became locked in the deli basement, he shone the light around to try to find another exit—which, of course, did not exist. T. 380-82. In his summation, defense counsel argued that the evidence showed that Officer Gore had vouchered Mr. Joseph’s cell phone, which supported Mr. Joseph’s explanation. T. 421; see also T. 289 (Officer Gore testimony regarding vouchering the cell phone). The prosecution did not dispute that point. Also, the prosecution did not (as it could not) dispute defense counsel’s contention that the video did not record Mr. Joseph taking or even handling anything from the Greenleaf Deli. T. 429-30. Instead, as Mr. Roy’s testimony confirmed, Mr. Joseph was not alleged to have taken anything from the deli basement. T. 348. When properly considered, this credible evidence provides sufficient reasonable doubt about Mr. Joseph’s intent. The jury obviously wrestled with the question of whether Mr. Joseph intended to commit a crime in the basement. Even after being shown the video of Mr. Joseph in the deli basement during trial (T. 338, 442), the jury asked to rewatch the video several times during its deliberations. On the first day of 26 US_ACTIVE:\44388990\1\99995.4810 deliberations, the jury requested “to watch the video on the courtroom monitors” because they “fe[lt] perhaps that they [were] better quality.” T. 487. While the monitors did not work, the tape was replayed on the courtroom video screen. T. 491-93. The jury also asked “that Mr. Joseph physically hold the flashlight in evidence in the manner shown in the video in front of the jury.” T. 489-90. The judge denied that request because it was “not demonstrated during the trial.” T. 490, 492. On the second day of deliberations, the jurors requested and were allowed to take the video equipment into the jury room to enable them to “see the video in slow motion or possibly frame by frame.” T. 509-14. While the jury ultimately failed to give due weight to Mr. Joseph’s unrebutted testimony—and, therefore, its verdict should be reversed—the jurors’ extensive deliberations show that they viewed the issue of intent as a close question. None of the other evidence directly refutes Mr. Joseph’s testimony that he went into the deli basement to search for his phone. Mr. Joseph testified that he told Mr. Roy from the Greenleaf Deli and Officer Gore that he had been looking for his phone. T. 363, 379-80. The fact that the other witnesses do not remember hearing Mr. Joseph’s explanation does not matter. Mr. Roy (see T. 349), could have misunderstood Mr. Joseph and heard him say something else. As a native Bengali-speaker Mr. Roy testified through an interpreter that he only understood “a little” English. T. 322-23, 349 (emphasis added). The prosecutor, in fact, 27 US_ACTIVE:\44388990\1\99995.4810 acknowledged Mr. Roy’s limited fluency in English. T. 444. As further evidence of his limited English, Mr. Roy admitted that his younger colleague, who “speaks better English that [he] do[es]” was the one to call the police. T. 335-36. With regard to Officers Gore and Natal, neither remembered exactly what Mr. Joseph did or did not say. Rather, they simply did not “recall” him making any statements about his phone. T. 290-91, 315. Similarly, Mr. Joseph’s testimony that he used a small flashlight, of the kind a person would always carry with them on his/her key-chain (T. 362), supports that he entered the deli basement simply to find his fallen phone and not because of some plan to commit a crime—which would likely have involved a larger flashlight. A key-chain flashlight was never found or produced into evidence but Mr. Joseph’s testimony on the subject was not directly refuted either. While another flashlight was found inside the deli basement, Mr. Joseph stated that the flashlight found in the deli basement was not his. T. 377. The prosecution did not offer evidence that proved that Mr. Joseph owned or had even touched that flashlight. Moreover, the testimony was inconsistent as to who actually found the flashlight that was recovered. Compare T. 344 (Witness Mr. Roy: “The people who work in the morning, when they came and took out the coffee cups from the carton, they found [the flashlight] there . . . next day [after June 28, 2010] around twelve noon.”) with T. 283 (Witness Officer Gore: “I found a blue flashlight in a 28 US_ACTIVE:\44388990\1\99995.4810 box in the basement.”). As with the preceding evidence, the only reliable evidence regarding a flashlight is Mr. Joseph’s testimony that he used a key-chain flashlight to help him search for his fallen phone in the dark deli basement. Finally, the events that occurred after Mr. Joseph exited the deli basement and that are relevant to Mr. Joseph’s escape and resisting arrest convictions (which are not being challenged in this appeal) do not show that Mr. Joseph had the requisite intent while he was in the deli basement. Mr. Joseph arguably committed non-criminal trespass—which does not require intent. N.Y. Penal Law § 140.05 (McKinney 2010) (“A person is guilty of trespass when he knowingly enters or remains unlawfully in or upon premises.”). As the jury heard, Mr. Joseph had prior convictions. T. 369. It is completely plausible that Mr. Joseph had an aversion to police and returning to jail for trespassing irrespective of whether he committed burglary. And, for all the reasons described above, Mr. Joseph did not, in fact, commit burglary in either the second or third degrees. CONCLUSION For the foregoing reasons, Ronel Joseph's convictions for both second and third-degree burglary should be reversed. In the alternative, if the Court finds that he had the requisite intent to commit a crime in the deli basement, Mr. Joseph's conviction on second-degree burglary should be reversed for the prosecution's failure to prove the "dwelling" element beyond a reasonable doubt. Dated: New York, New York December 12, 2013 Respectfully submitted, RICHARD M. GREENBERG, ESQ. EUNICE C. LEE, ESQ. Attorneys for Defendant-Appellant OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 160 l New York, NY 10007 (212) 402-4 00 By: matthew.howatt@weil.com WElL, GOTSHAL & MANGES LLP Of Counsel 29 A-1 US_ACTIVE:\44388990\1\99995.4810 ADDENDA SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – x THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- RONEL JOSEPH, Defendant-Appellant. : : : : : : : : : Ind. No. 3120/10 – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – x STATEMENT PURSUANT TO RULE 5531 1. The indictment number in the court below was Ind. No. 3120/10. 2. The full names of the parties were The People of the State of New York against Ronel Joseph. 3. This action was commenced in Supreme Court, New York County. 4. This action was commenced by the filing of an indictment. 5. This is an appeal from a judgment of conviction against Ronel Joseph, upon a jury verdict, for one count of second-degree burglary, N.Y. Penal Law § 140.25(2) (McKinney 2010), one count of third-degree burglary, N.Y. Penal Law § 140.20 (McKinney 2010), one count of second-degree attempted escape, N.Y. Penal Law § 110.00/205.10(2) (McKinney 2010), and one count of resisting arrest, N.Y. Penal Law § 205.30 (McKinney 2010). Mr. Joseph was sentenced to a determinate term of seven years imprisonment with five years of post-release supervision on the second-degree burglary count, and indeterminate terms of three and one half years to seven years imprisonment on the third-degree burglary count, one year on the second- degree attempted escape count, and one year on the resisting arrest count, with all sentences to be served concurrently (Ward, J.). A-2 US_ACTIVE:\44388990\1\99995.4810 6. This is an appeal from a judgment of conviction rendered on December 6, 2010. 7. Mr. Joseph has been granted leave to appeal as a poor person on the original record and typewritten briefs. A-3 US_ACTIVE:\44388990\1\99995.4810 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – x THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- RONEL JOSEPH, Defendant-Appellant. : : : : : : : : : Ind. No. 3120/10 – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – x PRINTING SPECIFICATIONS STATEMENT 1. The following statement is made in accordance with 22 N.Y. C.R.R. § 600.10. 2. Ronel Joseph’s brief was prepared in the processing system Microsoft Word 2010, with Times New Roman typeface, 14 point font (12 point font footnotes). 3. The text of the brief has a word count of 6,648, as calculated by the processing system, and is 29 pages.