The People, Respondent,v.Ronel Joseph, Appellant.BriefN.Y.September 14, 2016To be argued by DIANE N. PRINC COVER New York Supreme Court Appellate Division - First Department THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - RONEL JOSEPH, Defendant-Appellant. B R I E F F O R R E S P O N D E N T CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 (212) 335-9000 danyappeals@dany.nyc.gov CHRISTOPHER P. MARINELLI DIANE N. PRINC ASSISTANT DISTRICT ATTORNEYS Of Counsel TABLE OF CONTENTS Page TABLE OF AUTHORITIES ........................................................................................... ii INTRODUCTION ............................................................................................................ 1 The People’s Case.................................................................................................... 3 The Defense Case .................................................................................................... 8 POINT THE PEOPLE PROVED DEFENDANT’S GUILT WITH OVERWHELMING EVIDENCE ............................................. 11 CONCLUSION ............................................................................................................... 31 TABLE OF AUTHORITIES STATE CASES People v. Basora, 75 N.Y.2d 992 (1990) ......................................................................... 29 People v. Bleakley, 69 N.Y.2d 490 (1987) ................................................................. 13, 30 People v. Bobbitt, 49 A.D.3d 265 (1st Dept. 2008) ................................................. 24, 26 People v. Cohen, 204 A.D.2d 159 (1st Dept. 1994) ....................................................... 16 People v. Corporan, 169 A.D.2d 643 (1st Dept. 1991) .................................................. 13 People v. Crooks, 95 A.D.3d 417 (1st Dept. 2012) .................................................. 16, 22 People v. Danielson, 9 N.Y.3d 342 (2007) ................................................................ 12-13 People v. Delamota, 18 N.Y.3d 107 (2011) .................................................................... 12 People v. Diaz, 53 A.D.3d 504 (2d Dept. 2008) ....................................................... 24, 26 People v. Gaines, 74 N.Y.2d 358 (1989) .................................................................... 24-25 People v. Gordon, ___ N.Y.3d ___, slip op. 100 (June 12, 2014) ................................ 12 People v. Irrizary, 183 A.D.2d 630 (1st Dept. 1992)................................................ 25, 27 People v. Johnson, 162 A.D.2d 267 (1st Dept. 1990) .................................................... 16 People v. Kennedy, 47 N.Y.2d 196 (1979) ..................................................................... 12 People v. Mackey, 49 N.Y.2d 274 (1980) .................................................................. 24, 26 People v. Mahboubian, 74 N.Y.2d 174 (1989) ......................................................... 24, 30 People v. Maisonet, 304 A.D.2d 674 (2d Dept. 2003) ................................................... 23 People v. Malizia, 62 N.Y.2d 755 (1984), cert. denied, 469 U.S. 932 (1984) ............................................................................... 12 People v. McCray, ___ N.Y.3d ___, slip. op. 118 (N.Y. June 12, 2014) ................. 15-22 People v. Montanez, 41 N.Y.2d 53 (1976) ...................................................................... 12 -ii- People v. Paul, 204 A.D.2d 205 (1st Dept. 1994)........................................................... 16 People v. Porto, 226 A.D.2d 190 (1st Dept. 1996) .................................................. 13, 30 People v. Quattlebaum, 91 N.Y.2d 744 (1998)............................................. 16, 18, 21, 23 People v. Rohena, 186 A.D.2d 509 (1st Dept. 1992) ............................................... 16, 23 People v. Romero, 7 N.Y.3d 633 (2006) ......................................................................... 13 People v. Samuels, 99 N.Y.2d 20 (2002) ......................................................................... 24 People v. Torres, 162 A.D.2d 385 (1st Dept. 1990) ....................................................... 16 Quinn v. People, 71 N.Y. 561 (1878) ......................................................................... 16-23 STATE STATUTES CPL § 450.15(5) ................................................................................................................ 13 Penal Law § 110.00 ....................................................................................................... 1, 13 Penal Law § 140.00 .......................................................................................................... 12 Penal Law § 140.00(2) ................................................................................................ 22-23 Penal Law § 140.00(3) ..................................................................................... 15, 17, 22-23 Penal Law § 140.20 ....................................................................................................... 1, 14 Penal Law § 140.25(2) ............................................................................................ 1, 12, 14 Penal Law § 205.10(2) .................................................................................................. 1, 13 Penal Law § 205.30 ............................................................................................................. 1 Penal Law § 205.55 ........................................................................................................... 13 -iii- SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- RONEL JOSEPH, Defendant-Appellant. BRIEF FOR RESPONDENT INTRODUCTION Defendant Ronel Joseph appeals from a February 22, 2011 judgment of the Supreme Court, New York County (Ward, J.), convicting him, after a jury trial, of one count each of Burglary in the Second Degree (Penal Law § 140.25[2]), of Burglary in the Third Degree (Penal Law § 140.20), of Resisting Arrest (Penal Law § 205.30), and of Attempted Escape in the Second Degree (Penal Law §§ 110/205.10[2]). The court sentenced defendant to a seven-year determinate prison term and a five-year term of post-release supervision for second-degree burglary, an indeterminate prison term of from three and a half to seven years for third-degree burglary, and a one-year definite jail term for each resisting arrest and attempted escape. The court imposed all of defendant’s sentences to run concurrently. Defendant is currently incarcerated pursuant to that judgment. During the evening of June 28, 2010, Shorojit Roy was working at the cash register at the Greenleaf Deli at Amsterdam Avenue in Manhattan. At approximately 8:30 p.m., Roy saw on the store’s surveillance video that defendant had entered the Deli basement with a flashlight and was looking around at store merchandise. Roy had never seen defendant before, and defendant did not have permission to be in the basement. Roy locked defendant in the basement while another store employee called the police. Soon thereafter, Police Officers Bradley Gore and Alberto Natal arrived and arrested defendant. While Officer Gore was escorting defendant to the police car, defendant attempted to escape, dragging Officer Gore behind him down Amsterdam Avenue in the middle of heavy traffic. After defendant dragged Gore the distance of about two car lengths, the two toppled over, with Gore falling on top of defendant. Once on the ground, defendant continued to fight, kicking forcefully and thrashing around. To finally subdue defendant, Gore had to pepper spray him. As a result of the struggle, defendant fractured his arm, and Gore’s knees were banged up and sore for about a week. By New York County Indictment Number 3120/10, filed on July 2, 2010, defendant was charged with one count each of second-degree and third-degree burglary, resisting arrest, and attempted second-degree escape. On December 1, 2010, defendant proceeded to trial before the Honorable Laura A. Ward and a jury, -2- and on December 6, 2010, the jury found defendant guilty as charged. On January 13, 2011, Justice Ward sentenced defendant as noted above. On appeal, defendant challenges his second-degree and third-degree burglary convictions as based on legally insufficient evidence and against the weight of the evidence. THE EVIDENCE AT TRIAL The People’s Case During the evening of June 28, 2010, SHOROJIT ROY was working at the Greenleaf Deli, located at Amsterdam Avenue in Manhattan (Gore: 262; Roy: 322, 329-30).1 Roy, a recent immigrant from Bangladesh who had worked at the Deli for about eight months, was assigned to work the cash register that day from 4:00 p.m. until closing at 2:00 a.m. (Roy: 322-24, 330). The Deli sold assorted items such as fast food, soft drinks, beer, cigarettes, and lotto tickets; advertisements for these items adorned the front of the Deli and were visible from the sidewalk in front (People’s Exs. 1, 2: photographs of the front of the Greenleaf Deli). The Deli was located on the first floor of a seven-floor building, and all of the six floors above consisted of residential apartments (Gore: 262-63; Roy: 323-24). There was only one public entrance to the Deli on Amsterdam Avenue (Roy: 324; People’s Ex. 2). 1 At trial, Roy testified through a Bengali interpreter (Roy: 321). -3- Beneath the Deli was a basement where employees stored soft drinks and water (Roy: 326; People’s Exs. 5, 6: photographs of basement). The only entrance to the basement was through two doors, which were located on the sidewalk beside Amsterdam Avenue and adjacent the Deli (Gore: 269; Natal: 306; Roy: 325-26; People’s Ex. 2: photograph). Beneath the two doors was a staircase that led down to the basement (Roy: 327; People’s Ex. 4: photograph). Only Greenleaf Deli employees were allowed in the basement (Roy: 329). Additionally, the Greenleaf Deli had four security cameras throughout the store, including one in the basement (Roy: 333-34). These security cameras displayed on a monitor located in front of the cash register inside the Deli (Roy: 332). A CD drive next to the cash register recorded the cameras’ display (Roy: 337). At approximately 8:30 p.m., Roy was working at the cash register and assisting a customer when he saw on the surveillance monitor defendant entering the open doors to the Greenleaf Deli basement (Roy: 332). Although the doors were normally kept closed during business hours, the doors had been left open when a Deli employee had retrieved some water bottles from the basement earlier (Roy: 332, 348, 349). On the screen, Roy watched as defendant entered the basement with a flashlight in his hand and then shone his flashlight around at the store merchandise (Roy: 332, 349; People’s Ex. 10: surveillance video). Roy had never seen defendant before, and defendant did not have permission to be in the Deli basement. Roy asked his co-worker to stay inside the Deli, and then Roy went, closed the basement doors, -4- and locked defendant in the basement (Roy: 335). In response, defendant yelled, “Open the door,” and, “It’s very hot in here” (Roy: 349). Defendant did not say he was looking for a cell phone that he had dropped in the basement (Roy: 349). Roy went back into the store and asked his co-worker, who spoke better English, to call the police (Roy: 335-36). A little before 9:00 p.m., Police Officers BRADLEY GORE and ALBERTO NATAL, who were on uniform patrol in a marked police car, received a radio transmission that a burglary was in progress at the Greenleaf Deli and that a man was locked in the Deli basement (Gore: 261-63; Natal: 302-04). When the officers arrived at the Deli a few minutes later, Roy informed them that defendant had entered the basement without permission and was looking around with a flashlight (Roy: 336). Officer Gore viewed the surveillance video from the Deli basement, which showed defendant pacing back and forth in the basement with what appeared to be a flashlight (Gore: 266; People’s Exs. 8: photograph of surveillance monitor; 10: video). The officers and Roy next went outside the Deli to the entrance to the basement (Gore: 269-70; Natal: 306-07; People’s Ex. 9: photograph). Officer Gore asked Roy to unlock the doors, and then either Gore or Roy opened both of the doors (Gore: 270-71; Natal: 307; People’s Ex. 3: photograph). The officers saw defendant inside the basement and asked him to climb the stairs towards the entrance (Gore: 272-73; Natal: 307-08). After defendant left the basement, the officers instructed him to lie down on the sidewalk, where they placed him under arrest for -5- burglary and handcuffed him with his arms behind his back (Gore: 273; Natal: 307- 08). Once handcuffed, defendant exclaimed, “I’m not going to jail” (Gore: 273). Defendant made no claim that he had been looking for his cell phone in the Deli basement (Gore: 290-91; Natal: 315). After defendant was arrested, the officers and defendant went inside the Deli for further investigation, and then walked to the officers’ police car, which was double parked in front of the Greenleaf Deli (Gore: 274; Natal: 309-10).2 As they walked to the car, Officer Gore was on defendant’s right side with his hand placed on defendant’s arm (Gore: 275-76). Officer Natal meanwhile began to clean out the back seat so that there would be enough room for defendant (Gore: 279; Natal: 310-11). When Officer Gore opened the car door to put defendant inside, defendant “bolted on” Gore, running away and saying, “I’m not going to jail” (Gore: 276). Gore, who was 5’7” and weighed 180 pounds, grabbed defendant’s left arm with his left hand, but defendant, who was 6’1” and weighed approximately 230 pounds, continued to run away, dragging Gore behind him in the middle of traffic on Amsterdam Avenue (Gore: 276-81; Natal: 311-13). After defendant dragged Gore the distance of two lengths, defendant and Gore fell to the street (Gore: 277-78; Natal: 311-13). Officer Natal, who had been alerted by the sound of “pitter-patter” and 2 Officer Gore recalled only that he, Officer Natal, and defendant had gone to the police car after defendant’s arrest (Gore: 274). -6- “footsteps,” looked up to see Gore and defendant as they fell (Gore: 279-80; Natal: 311-13). After the men fell, Natal went towards them and called for backup (Natal: 314). On the ground, defendant continued to fight Gore, kicking and wrestling with “a lot of energy . . . in the middle of a six-lane highway with traffic” (Gore: 279; Natal: 314). In order to “control [defendant] and control the situation,” Gore sprayed defendant with “Mace” (Gore: 279). As a result of the struggle with defendant, Officer Gore sustained “banged up” and “sore” knees “for like a week” (Gore: 280). Gore later found out that defendant fractured his arm (Gore: 280). Neither officer drew his gun on defendant at any time, and Gore did not strike defendant’s arm (Gore: 276, 278-79, 280; Natal: 314). After defendant was secured, Gore searched him, but did not recover a flashlight or any property from the Greenleaf Deli (Gore: 282, 296; Natal: 315). Gore did, however, recover from defendant a cell phone (Gore: 289, 290-92, 298-99).3 A few days later, Officer Gore returned to the Greenleaf Deli to search the basement for additional evidence (Gore: 282-83, 299). This time, he recovered and vouchered a blue flashlight and two batteries that he located inside a carton that 3 Although Officer Gore recalled that he recovered the cell phone from defendant, he did not write on a property voucher from where he recovered phone (Gore: 289-93, 298-99). -7- contained coffee cups (Gore: 283, 286, 288-89; Roy: 344-45; People’s Ex. 11: flashlight).4 The Greenleaf Deli did not sell this model of flashlight (Roy: 344). The Defense Case During the evening of June 28, 2010, defendant RONEL JOSEPH was walking on the sidewalk next to the Greenleaf Deli (Joseph: 360-61, 369-72, 381).5 Defendant, who had just gotten off work and was on his way to visit his “lady friend,” was trying to call her to let her know he was “close by.” But while he was pulling his phone – a 5’ by 5’ Blackberry – out of his pocket, the phone “by some chance just fell” (Joseph: 369-72). At the time he dropped the phone, defendant was near the Greenleaf Deli basement doors, which were both open. The phone bounced once on the ground, fell through the open basement stairs of the deli and onto the stairs, and then disappeared into the basement (Joseph: 362, 372, 374-75). Defendant immediately walked down the stairs to look for his phone (Joseph: 362, 375, 376).6 When he got to the end of the staircase, it was dark, so he turned on the flashlight he had on his keychain and started looking around the floor (Joseph: 362, 277). The flashlight he used was not the same flashlight that was later discovered 4 At trial, Roy recalled that Deli employees had initially found the flashlight at around noon on July 1, 2010 when they came down to the basement to retrieve coffee cups from the carton (Roy: 344). 5 Defendant had been convicted of three felonies and multiple misdemeanors (Joseph: 368, 369). 6 Defendant did not go inside the Greenleaf Deli after his phone fell, but he should have done so (Joseph: 376). -8- in the basement; instead, it was “a key chain flashlight” and “smaller” than the one later recovered (Joseph: 377). Once downstairs, defendant “didn’t really look at the shelves” or the items on the shelves (Joseph: 363). Instead, he looked on the floor for his phone for the “most part” (Joseph: 363). Although defendant looked around for several minutes, he was never able to find his phone (Joseph: 363, 377, 379). After about three to four minutes, defendant heard the basement doors being shut and locked, and he walked towards the doors (Joseph: 361-62, 363, 378-79). He heard someone ask, “What are you doing down there?” Defendant responded, “I came down here to look for my phone that fell.” The man replied, “Stay right there, I’m calling the police.” Defendant did not complain about the heat to the man (Joseph: 363). With the doors locked, he was forced to stay in the basement, and so he stopped looking for his phone and looked for “another way to get out of there” (Joseph: 363-64, 378, 381). But, defendant was not able to find another exit (Joseph: 364). Eventually, one of the basement doors was opened, and defendant saw a police officer with his gun drawn. A second officer was present as well. The officer with the drawn gun told defendant to put his hands on the door that was still closed. Defendant was standing on the stairs, halfway out on the street and halfway still in the basement, and he put his hands on the closed door as requested. The officer next told defendant to lay down on the closed door with his hands behind his back -9- (Joseph: 364). Defendant complied and was placed under arrest; he did not tell the officer, “I’m not going to jail” (Joseph: 364, 382-83). After defendant was arrested, the police officers brought him inside the Greenleaf Deli. Defendant and the police officers were inside the Deli for approximately four minutes while Officer Gore spoke with a Deli employee, and then the officers brought defendant to the police car (Joseph: 365, 383). When they were by the police car, defendant started “moving” and told Officer Gore that he had gone down into the basement “to retrieve [his] phone that fell down” (Joseph: 365-66, 367). Gore said something in response, and defendant replied, “That’s not true, that’s not the reason I was down there” (Joseph: 366). Defendant and Gore then “got into a little argument.” Officer Gore “blurted something out,” punched defendant in the face “twice,” and “pepper-sprayed” him (Joseph: 366-67, 384-85). At this point, defendant “tried to run,” but then Gore “tackled” defendant and fell on top of him (Joseph: 367, 384-85, 387-88). While defendant was on the ground with his arms handcuffed behind his back, Gore was on top of him and was “twisting [his] arm up . . towards [his] neck” (Joseph: 367). Defendant was not kicking, but he was “[p]robably . . . moving from side to side” because the pepper spray was bothering his eyes (Joseph: 388-89). While defendant and Gore were arguing, the other officer was on the “other side of the police car . . . -10- by the passenger side [of] the back seat” (Joseph: 366, 384). Defendant knew he was under arrest but continued to fight (Joseph: 389).7 Later that same night, defendant received treatment for his arm at Roosevelt Hospital, and his arm was placed in a “splint like cast” (Joseph: 367-68). Defendant’s phone was also picked up that night by “Nicholas Furse” at the police station; Officer Gore “said he found it behind the stairs” (Joseph: 390). Defendant was the man on the videotape seen in the Greenleaf Deli basement on June 28, 2010, but he was not trying to steal anything and did not intend to commit a crime when he entered the basement (Joseph: 360-61, 368, 378). POINT THE PEOPLE PROVED DEFENDANT’S GUILT WITH OVERWHELMING EVIDENCE (Answering Defendant’s Brief) After trial, a jury convicted defendant of second-degree and third-degree burglary, resisting arrest, and second-degree attempted escape. On appeal, defendant does not challenge his convictions for resisting arrest or attempted escape. Instead, he contends that his convictions for second-degree and third-degree burglary should 7 Defendant did not state, “I’m not going to jail,” at any point during this incident (Joseph: 383, 385). During cross-examination, defendant testified that he was punched in the “eye,” and that he ran down the street without Officer Gore holding on to him while he ran, “because that don’t make sense” (Joseph: 385-87). -11- be vacated. Specifically, defendant argues that the Greenleaf Deli basement was not a “dwelling” under Penal Law §§ 140.00 and 140.25(2), and so his second-degree burglary conviction was based on legally insufficient evidence (Defendant’s Brief [DB]: 14-22). Additionally, defendant contends that both burglary convictions were legally insufficient and against the weight of the evidence, because the evidence failed to show that he intended to commit a crime when he entered the Greenleaf Deli basement (DB: 22-28). Defendant’s claims are meritless. “It is well established that ‘[a] verdict is legally sufficient if there is any valid line of reasoning and permissible inferences that could lead rational person to conclude that every element of the charged crime has been proven beyond a reasonable doubt.’” People v. Gordon, ___ N.Y.3d ___, slip op. 100, at 8 (June 12, 2014) (quoting People v. Delamota, 18 N.Y.3d 107, 113 [2011]). Thus, a reviewing court must “marshal competent facts most favorable to the People,” People v. Danielson, 9 N.Y.3d 342, 349 (2007), and draw all reasonable inferences in their favor. People v. Kennedy, 47 N.Y.2d 196, 203 (1979). Of course, an appellate court must be mindful that credibility is most appropriately determined by the trier of fact, see People v. Malizia, 62 N.Y.2d 755, 757 (1984), cert. denied, 469 U.S. 932 (1984) , and should assume that the fact-finder has credited the People’s witnesses. See People v. Montanez, 41 N.Y.2d 53, 57 (1976). Even where sufficient evidence establishes every element of the crime, this Court possesses the factual review power to assess whether a verdict comported with -12- the weight of the evidence. See CPL 450.15(5); People v. Danielson, 9 N.Y.3d at 348. Still, even in conducting that review, “[g]reat deference” must be given 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 (1987). Indeed, it is a long- standing principle that the trier of fact has a “superior ability” to that of the reviewing court to evaluate the witnesses’ credibility and resolve conflicts in the evidence. People v. Romero, 7 N.Y.3d 633, 644-45 (2006). Accordingly, the fact-finder’s credibility determinations should not be disturbed unless “manifestly erroneous” and “plainly unjustified by the evidence.” People v. Porto, 226 A.D.2d 190 (1st Dept. 1996), citing People v. Corporan, 169 A.D.2d 643, 643 (1st Dept. 1991). As an initial matter, defendant does not challenge his resisting arrest or second- degree attempted escape convictions. This is not surprising considering the overwhelming evidence against him at trial. Specifically, to sustain defendant’s conviction for resisting arrest, the People had to show that defendant “intentionally prevent[ed] or attempt[ed] to prevent a police officer . . . from effecting an authorized arrest of himself.” See Penal Law § 205.55. And to support his escape conviction, the People had to prove that defendant attempted to escape from custody after having been arrested for a Class C, D, or E felony. See Penal Law §§ 110.00/205.10(2). Although defendant challenges the sufficiency of the evidence supporting his convictions, he does not, and cannot reasonably dispute, that having discovered -13- defendant in the basement of the Greenleaf Deli, Officers Gore and Natal had probable cause to arrest him for burglary, a C or D felony. See Penal Law §§ 140.20; 140.25. After being arrested, defendant attempted to run away, dragged Gore two car lengths amid traffic on Amsterdam Avenue, and then continued to struggle with Gore after the two had fallen on the ground (Gore: 276-80; Natal: 311-14; see Joseph: 365- 67; 384-88). Thus, the proof at trial established beyond a reasonable doubt that defendant was guilty of resisting arrest and attempted second-degree escape. Next, to convict defendant of second-degree burglary, the People were required to prove beyond a reasonable doubt that defendant knowingly “enter[ed] or remain[ed] unlawfully” in “a dwelling” with the “intent to commit a crime therein.” Penal Law § 140.25(2). Similarly, defendant’s conviction for third-degree burglary required proof beyond a reasonable doubt that he “knowingly enter[ed] or remain[ed] unlawfully in a building with intent to commit a crime therein.” Id. § 140.20. As demonstrated below, the evidence at trial proved each of these elements beyond a reasonable doubt. First, while defendant half-heartedly contends that he at most committed “non- criminal trespass” (DB: 28), he does not otherwise contest on appeal that he knowingly and unlawfully entered the Greenleaf Deli basement. Of course, the evidence at trial overwhelmingly demonstrated this element. Specifically, as Greenleaf Deli employee Shorojit Roy testified, Deli customers were not allowed to enter the basement, and defendant had no permission to be there (Roy: 329, 335). In fact, -14- defendant himself admitted that he should have gone inside the Greenleaf Deli before entering the basement (Joseph: 376). Thus, it is clear that defendant knowingly and unlawfully entered the Greenleaf Deli basement on June 28. A. While defendant does not challenge his unlawful presence in the Greenleaf Deli basement, he does challenge the sufficiency of his second-degree burglary conviction by arguing that the Greenleaf Deli basement was not a dwelling (DB: 14-22). But under well-settled precedent, the proof at trial clearly demonstrated that the Greenleaf Deli basement that defendant burglarized was a “dwelling.” Under the burglary statute, a “dwelling” is defined as a “building which is usually occupied by a person lodging therein at night.” Penal Law § 140.00(3). With respect to buildings with separate units, the statute provides that “[w]here a building consists of two or more units separately secured or occupied, each unit shall be deemed both a separate building in itself and a part of the main building.” Id. § 140.00(2). As the Court of Appeals has held for more than a century and recently reiterated with respect to this statute, as a general rule, “if a building contains a dwelling, a burglary committed in any part of that building is the burglary of a dwelling . . . .” People v. McCray, ___ N.Y.3d ___, slip. op. 118, at 2 (N.Y. June 12, 2014). In particular, where a commercial establishment is “under the same roof and within the same four walls” as a dwelling, the establishment is considered a dwelling. -15- Quinn v. People, 71 N.Y. 561, 573 (1878); see People v. Quattlebaum, 91 N.Y.2d 744, 747 (1998) (“a ground floor commercial space ‘under the same roof’ of a building otherwise used for residences [is], in fact, a dwelling”). This is true even when there is no “internal communication” between the establishment and the dwelling. Quinn, 71 N.Y. at 573; see also McCray, slip. op. at 6 (dangers created by burglary are present even if “place of burglary and the sleeping quarters are not instantly accessible to each other”).8 While any portion of a building with dwellings is generally considered a dwelling, the Court of Appeals has recognized a limited exception for very “large buildings” in which “the crime is committed in a place so remote and inaccessible from the living quarters that the special dangers inherent in the burglary of a dwelling do not exist.” See, e.g., McCray, slip. op. at 2, 7, 10; see also Quinn, 71 N.Y. at 573-74 8 Accord People v. Crooks, 95 A.D.3d 417, 418 (1st Dept. 2012) (“Burglary of the basement of an apartment building constitutes burglary of a ‘dwelling’”); People v. Paul, 204 A.D.2d 205, 205 (1st Dept. 1994) (“Defendant’s claim that the evidence was insufficient to prove burglary in the second degree since the premises he was accused of entering was a warehouse, not a dwelling, is without merit, there being overwhelming evidence that families use at least two floors of the building in which the warehouse is located as overnight lodgings . . . .”); People v. Cohen, 204 A.D.2d 159, 160 (1st Dept. 1994) (defendant’s conviction for second-degree burglary affirmed when the paint-supply storeroom he unlawfully entered was in the basement of a building “occupied by tenants residing there at night”); People v. Rohena, 186 A.D.2d 509, 511 (1st Dept. 1992) (where evidence showed “that the rest of the building in which the [burglarized] doctor’s office was located was occupied by tenants residing there at night,” the burglarized office constituted a dwelling); People v. Torres, 162 A.D.2d 385, 386 (1st Dept. 1990) (hallways of multistory apartment building constituted a dwelling when the hallways were open to building residents only); People v. Johnson, 162 A.D.2d 267, 268 (1st Dept. 1990) (music shop on first and second stories of a multistory apartment building constituted a dwelling in light of the residences above the shop, even though the “shop and residential units above were separate units”). -16- (explaining that “a part of a dwelling-house may be so severed from the rest of it, . . . as to be no longer” constitute a dwelling). As the Court explained in Quinn and McCray, “the essence of the crime of burglary at common law is the midnight terror excited, and the liability created by it of danger to human life, growing out of the attempt to defend property from depredation.” See McCray, slip. op. at 6 (quoting Quinn, 71 N.Y. at 567). When, however, a building is so large that a burglar’s entrance “into one of the commercial units may create virtually no risk that the people living in the apartments will even be conscious of his presence,” the Court recognizes an exception to the general rule, and such an intruder is not guilty of burglarizing a dwelling. See id. at 7. But this exception is limited, and it does not apply when “the crime is committed ‘in close congruity’ with a’ place of repose’ even though the place of burglary and the sleeping quarters are not instantly accessible to each other.” See id. at 6. Here, the evidence at trial plainly showed that the Greenleaf Deli basement was a “dwelling” for purposes of the second-degree burglary statute. The Deli basement was located on the first floor of a seven-story apartment building at Amsterdam Avenue (Gore: 262-63; Roy: 324). As these residential apartments were undisputedly “dwellings” in which residents slept at night, see Penal Law § 140.00(3), so too was the Deli basement a dwelling, since it was “part of the main building” and “within the same outer walls and under the same roof” the apartments above. See id. § 140.00(2); see also Quinn, 71 N.Y. at 573 (finding “no decision, that where the room or building -17- entered, was under the same roof and within the same four walls, it was not held to be a part of the dwelling-house within the statutory or common-law definition of burglary”). Moreover, as noted, this was so regardless of whether there was “internal communication” between the basement and the apartments above. See Quattlebaum, 91 N.Y.2d at 747; Quinn, 71 N.Y. at 573. Additionally, because Amsterdam Avenue was not so “large,” and the Deli basement was not “so remote,” that virtually no danger was posed to the residents, see, e.g., McCray, slip. op. at 2, it is clear that the limited Quinn/McCray exception is inapplicable here. First, a comparison of the building in Quinn and Amsterdam Avenue demonstrates that the Deli basement was, in fact, a dwelling, and that the limited exception does not apply. Specifically, the building in Quinn and Amsterdam Avenue were both multistory apartment buildings that had non- residential, commercial units on the lower floors and residential apartments on the upper floors. Id. at 564-65. Additionally, in both buildings, there “was no internal communication” between the commercial units and the apartments above. Id. at 564, 573. In Quinn, to travel between the burglarized commercial unit and the apartments above, “it was necessary to go out of doors into a yard fenced in, and from thence up stairs.” Id. Similarly, here, the Deli basement was accessible through two doors in the sidewalk adjacent to the building (People’s Ex. 2: photograph). Of course, notwithstanding the inaccessibility of the apartments from the commercial -18- unit in Quinn, the Court still determined that the commercial unit constituted a dwelling because it were “within the same four walls and under the same roof” as the apartments. Id. at 564, 573. So too here, although a burglar in the Deli basement could not directly access the apartments above, the basement and the apartments were under the same roof and part of the same building at Amsterdam Avenue. The basement thus constituted a “dwelling” under this well-settled precedent. Id. Additionally, the holding in McCray further highlights the inapplicability of the limited exception to this case. In McCray, the defendant burglarized a “large” building near Times Square with dozens of floors that contained several commercial establishments, including a hotel with guest rooms and a wax museum. Slip. op. at 2- 3. Among other rooms, the defendant had unlawfully entered an employee locker room in the hotel. Id. at 10-11. While the locker room was “not in the immediate neighborhood of the” hotel’s guest rooms, it was “near” to them and accessible via a staircase. Id. at 11. Given this close proximity, the Court had “little hesitation in concluding that the risks inherent in burglary of a dwelling – the ‘night terror’ and the danger of violence that we spoke of in Quinn – are present when a burglary comes this near to rooms in which people are sleeping.” See id. at 11. In contrast to the large building in McCray, Amsterdam Avenue was a relatively small, seven-story apartment building with only one commercial establishment, the Greenleaf Deli, which occupied the first floor and the basement. Moreover, the Deli basement that defendant entered at night was “in close congruity” -19- to six floors of residents in their “place[s] of repose,” who were only two floors above him. See McCray, slip. op. at 6. Given this close proximity, residents at Amsterdam Avenue could easily have been exposed to the dangers of an intruder – whether by coming home and walking by the entrance to the basement, by leaving their apartments to investigate a disturbance, or even by staying in their apartments and being hit by a stray bullet from an armed intruder. Thus, “the special dangers that accompany the burglary of a dwelling [we]re sufficiently present” at Amsterdam Avenue “to justify treating the crime as a more serious one than burglary of a building where no one lives.” See id. at 6-7 (special dangers exist “[w]hen a store owner in his bedroom becomes conscious that there is a burglary in the shop downstairs, or when a hotel guest hears a burglary in the coffee shop across the hall from her room”); see also Quinn, 71 N.Y. at 573.9 Nevertheless, defendant, contends that his second-degree burglary conviction should be overturned. Relying primarily on Quinn, he asserts that, given the absence of an internal connection between the Deli basement and the apartments above, the basement was so “severed” from the main building that an intruder’s unlawful entry posed no dangers to the residents above (DB: 17-22). But, as demonstrated above, 9 Additionally, to illustrate what kind of a building would fit within the exception, the McCray Court described a “skyscraper used largely for stores and offices, with a few apartments remote and inaccessible from the commercial space.” McCray, slip. op. at 7. Even though this was an “extreme” example, see id., it is clear that Amsterdam Avenue – with its six stories of apartments on top of the Deli and its basement – was not remotely such a building. -20- Quinn and its progeny have all expressly rejected the argument that a non-residential part of a building must be connected to the residential parts for a trespasser to pose a danger to the inhabitants therein and thus constitute a dwelling. See Quinn, 71 N.Y. at 573 (holding that the act of defendant, “in breaking into the store in the nighttime with felonious intent, a part as it was of a whole building in other parts of which there were persons dwelling and sleeping at the time, though there was no internal communication between the store and their rooms, was an act of recklessness and depravity, likely to cause alarm and to lead to personal violence and so endanger human life”) (emphasis ours); McCray, slip. op. at 6 (“And it remains true today, as it was in 1878, that [] dangers are created in significant degree when the crime is committed ‘in close contiguity’ with a ‘place of repose’ even though the place of the burglary and the sleeping quarters are not instantly accessible to each other.”); accord Quattlebaum, 91 N.Y.2d at 747 (“The fact that the first floor commercial space did not have ‘internal communication’ with the upper floor residences was immaterial in light of the statute which strongly suggested that a ground floor commercial space ‘under the same roof’ of a building otherwise used for residences was, in fact, a dwelling.”).10 10 Defendant attempts to distinguish this case from Quinn, asserting that the unlawful entry in Quinn posed a greater threat to the residents because they could have met the burglar in the yard, as opposed to a public street (DB: 18-19). This is a distinction without a difference. Whether they met in a yard or on the sidewalk immediately in front of the Deli the danger posed to the residents, who were in “close congruity” to the basement, was the same – a “frightening” intrusion into their dwelling that might “end in violence.” See McCray, slip. op. at 6. Moreover, while in Quinn there were only a couple of apartments in -21- (Continued…) Defendant also points to this Court’s decisions in Crooks and McCray as further support for his argument, contending that this Court affirmed the defendants’ second-degree burglary convictions in these cases because the defendants unlawfully entered areas in buildings where they could have encountered building residents (DB: 19-21). This is absolutely incorrect. In neither decision did this Court discuss the possibility or impossibility of interactions between building residents and the defendant. Instead, both cases involved straight-forward applications of the burglary statute, with this Court concluding that separate, non-residential units of main buildings otherwise containing residences constituted “dwellings” under Penal Law § 140.00(2), (3), because they were part of the same building. See McCray, 102 A.D.3d 560, 560 (1st Dept. 2003); Crooks, 95 A.D.3d at 418. Here, too, the Deli basement was part of the same main building that contained residences, and so the basement the building, 71 N.Y. at 564, in this case, there were six floors of apartments above the basement, and so even more residents were at risk here than in Quinn. In McCray, the defendant was charged with two counts of second-degree burglary: one count for entering the hotel locker room as discussed above, and a second count for entering a wax museum in the same building. Unlike the hotel locker room, the wax museum was “not physically close” to the hotel guest rooms above. But, it was connected to guest rooms via an internal staircase. Id. at 2-3, 11-12. On the question of whether the defendant’s entry into the wax museum constituted second-degree burglary, the Court held that although sleeping rooms and the burglarized room need not be “instantly accessible to each other” for the burglarized room to be considered a dwelling, id. at 6, given the large size of the building at issue and the several stories in between the museum and the guest rooms, the internal connection between them was “important” and affirmed defendant’s second-degree conviction given that connection. See id. at 2-3, 11-12. Of course, here, the apartments and basement were much closer, and so the lack of any internal communication between them is not dispositive. -22- ______________________ (…Continued) constituted a dwelling as well under this precedent. In any event, for the reasons discussed above, unlawful entry into the Deli basement posed very real dangers to the residents, irrespective of any internal connection between the basement and the apartments. Finally, defendant’s reliance on People v. Maisonet, 304 A.D.2d 674 (2d Dept. 2003) is similarly misplaced, as that case is entirely inapposite. In Maisonet, the defendant entered an apartment building’s hallway, not the basement. Id. at 675. Because entry of an apartment building’s hallway is unlawful only if the hallway is “inaccessible to the public,” and the evidence in that case showed that the hallway was otherwise open to the public, the court reversed the defendant’s first-degree burglary conviction. Id. Here, by contrast, not only did defendant unlawfully enter a basement instead of a public hallway, but also, it was overwhelmingly established at trial that the Greenleaf Deli basement was not open to the public. In short, since there is no dispute that the Greenleaf Deli basement was located under the same roof, within the same four walls, and in close congruity with numerous residential apartments above, defendant unquestionably burglarized a dwelling when he unlawfully entered that basement. See Penal Law §§ 140.00(2),(3); Quattlebaum, 91 N.Y.2d at 747; Quinn, 71 N.Y. at 573; Rohena, 186 A.D.2d at 511. B. Defendant also challenges his second-degree and third-degree burglary convictions as legally insufficient and against the weight of the evidence, asserting that -23- there was insufficient evidence of his intent to commit a crime in the Greenleaf Deli basement. This is incorrect. The evidence at trial proved defendant’s intent to commit a crime in the basement beyond a reasonable doubt. As the Court of Appeals has explained, “to secure a conviction for burglary, the People need only allege and prove a knowing and unlawful entry coupled with an intent to commit a crime therein.” People v. Mahboubian, 74 N.Y.2d 174, 193 (1989) (emphasis in original). Critically, “[t]here is no requirement that the People allege or establish what particular crime was intended, or that the intended crime actually be committed.” Id. Moreover, because “intent is subjective,” a defendant’s intent to commit a crime in the premises he entered can be inferred from the defendant’s conduct and surrounding circumstances. People v. Mackey, 49 N.Y.2d 274, 279 (1980); see generally People v. Samuels, 99 N.Y.2d 20, 24 (2002) (“[I]ntent is the product of the invisible operation of [the] mind to be determined, invariably, on the basis of defendants’ statements and conduct.”). Of course, the intent to commit a crime inside must exist contemporaneously with the unlawful entry into the building. See People v. Gaines, 74 N.Y.2d 358, 363 (1989).11 11 See also People v. Bobbitt, 49 A.D.3d 265 (1st Dept. 2008) (holding there “was extensive evidence that defendant entered the apartment in question with the intent to commit a crime therein, including, among other things, signs of forced entry and evidence supporting the inference that defendant was looking for something to steal”); People v. Diaz, 53 A.D.3d 504, 505 (2d Dept. 2008) (affirming defendant’s conviction for second- degree burglary when the evidence showed that defendant entered a “locked management office of an apartment building” through a window at around 4:00 a.m. and provided the -24- (Continued…) Here, the events culminating with defendant’s arrest clearly demonstrated that defendant entered the Greenleaf Deli basement with the intent to steal Deli merchandise. First, the front of the Greenleaf Deli had vibrantly colored advertisements for sandwiches, water, juices, coffee, groceries and lotto tickets, which any potential customer could easily see from the sidewalk (People’s Exs. 1 & 2: photographs). Right next to these advertisements, through two doors in the sidewalk, was the entrance to the Deli basement, in which water, juices, and other store merchandise were kept (Id.; see also Roy: 326). Normally these doors were closed, but they happened to be open when defendant walked by (Roy: 332; Joseph: 372). And while merchandise might not have been visible to passersby, it was reasonably inferable from the basement’s location that it was part of the store and contained store property. Although the basement was next to the Deli, commonsense would dictate to anyone that Deli customers and the general public were not allowed to enter this basement – indeed, at trial, defendant himself admitted as much, conceding that he should have gone inside the Deli instead of the basement (Roy: 329; Joseph: 376). Additionally, the Deli surveillance video showed defendant unlawfully entering the police with a “false excuse” to explain his presence when he was apprehended shortly thereafter); People v. Irrizary, 183 A.D.2d 630, 630 (1st Dept. 1992) (holding that “the People had established the requisite intent for burglary despite lack of actual theft” when evidence showed, inter alia, that defendant unlawfully an forcibly broke into restaurant, “was found hiding under a heating duct,” and resisted arrest by lunging “for an officer’s gun” and biting that officer). -25- ______________________ (…Continued) basement and shining his flashlight around at the store merchandise for a total of four minutes (Roy: 332; People’s Ex: 8: surveillance video; see Joseph: 379). Given this evidence, it was clear beyond a reasonable doubt that defendant – seeing the advertisements for store merchandise and finding the doors to the Deli basement open and unguarded – entered the basement with the intent to steal Deli property. See People v. Mackey, 49 N.Y.2d at 279; People v. Bobbitt, 49 A.D.3d at 265; People v. Diaz, 53 A.D.3d at 505. Moreover, that defendant was seen on the video looking at the merchandise for an extended period of time further supports this inference; plainly, defendant entered the basement expecting to locate more valuable items than the water and juices he located there, and he continued to look around for something more valuable until he was caught. In addition, defendant’s behavior after being caught further supports this conclusion, as it overwhelmingly demonstrates defendant’s guilty conscience. When first caught and locked in the basement by Roy, defendant by his own admission immediately started looking for another exit from the basement (Joseph: 363-64, 378- 80). And, when apprehended by the police, defendant more than once stated, “I’m not going to jail” (Gore: 273, 276). Finally, when it was clear that defendant was going to jail and Officer Gore was placing him inside the police car, defendant attempted to escape, running from Gore down a busy street (Gore: 276-78; Natal: 311-13, 314). Defendant paid no heed to the danger he caused Gore, dragging him for at least two car lengths against traffic (Id.). When the two fell, defendant -26- continued to fight, thrashing and kicking until Gore subdued defendant with pepper spray (Gore: 279; Natal: 314). All told, defendant’s unrepentant and violent conduct after getting caught “evinced a consciousness of guilt which further supports proof of his intent.” See People v. Irrizary, 183 A.D.2d at 630. Defendant, however, asserts that the evidence of his intent was insufficient, because the jury failed to give “due credit” to his testimony that he was merely attempting to locate his cell phone in the basement. According to defendant, the rest of the evidence at trial was consistent with his story, and so the jury’s verdict was unreasonable and contrary to the weight of the evidence (DB: 22-23, 25-28). But a review of defendant’s testimony and the rest of the evidence reveals that the jury had plenty of reasons to disregard defendant’s self-serving, inconsistent, and improbable account of the events. First, and as the prosecutor’s cross-examination revealed, defendant’s story about how his cell phone dropped and disappeared into the basement was plainly implausible. According to defendant, when he took his 5” by 5” plastic Blackberry curve out of his pants with “normal[] force,” it bounced not once, but multiple times, tumbling through the fortuitously opened basement doors onto the basement stairs, and then disappearing into the darkness (Joseph: 371-74). Indeed, it was defendant’s testimony that although he went “right away” into the basement to retrieve the phone, he never could locate it, even though the basement was “not that big” and defendant was down there looking around for fifteen minutes (Joseph: 375-76; 379). The fact -27- that the phone almost immediately reappeared once defendant was arrested clearly highlighted the implausibility of defendant’s story.12 Similarly, given the evidence from the surveillance video showing defendant looking around at items in the basement, the jury had every reason to disregard defendant’s self-serving statement that he did not “really look at the shelves” and only searched for his phone. Lastly, any reasonable trier of fact could have disbelieved defendant’s claim that his flashlight was different from the flashlight that was later recovered from at in the Deli basement and admitted as evidence at trial. People’s Exhibit 11 was recovered the Deli basement, the Deli did not sell this model of flashlight, and it blinked reality for defendant to suggest that it was pure coincidence that the flashlight turned up in the basement just a few weeks after he did.13 In addition to being implausible, defendant’s testimony at many times contradicted other, more credible evidence at trial. For example, although defendant 12 While Officer Gore testified that he recovered the phone from defendant, he also testified that he did not write from where he recovered the phone on the property voucher (Gore: 290-91). For his part, defendant gave self-serving testimony that Gore later said he located the phone behind the stairs (Joseph: 390). But wherever the phone was located that night, the probative point is that it was located the same evening that defendant was arrested, making dubious his claim that he lost the phone and was unable to recover it despite searching for it for an extended period of time. 13 Defendant’s appellant arguments about the allegedly inconsistent evidence at trial about whether Officer Gore or the Deli employees recovered the flashlight (DB: 27-28) are unavailing. Regardless of who later recovered the flashlight, it was undisputed at trial that this flashlight was recovered in the basement where defendant had been looking around and did not belong to the Deli. On the basis of this evidence, it was reasonable for the jury to conclude that the flashlight belonged to defendant. -28- testified that he told Roy and Officer Gore that he was went into the basement merely to locate his lost phone (Joseph: 363, 365-66), neither Roy nor Officer Gore recalled defendant saying this (Gore: 290-91; Roy: 349).14 Of course, the jury had good reason to credit the testimony of the People’s witnesses’ over defendant’s. As the trial court correctly explained, defendant was a biased witness with an interest in the outcome of the trial; the People’s witnesses had no motivation to lie to the jury (Proceedings: 457-58). Additionally, the fact that Officer Gore and Roy – who did not work together and were not together when defendant allegedly made these statements – testified consistently on this point lends further credibility to their testimony.15 Next, defendant argues that the surveillance video supported his testimony because it does not show him handling or taking anything from the basement (DB: 14 At trial, Officer Natal could not recall whether or not defendant said he was looking for his phone (Natal: 315 [“Q: Did you hear Mr. Joseph say: I’m looking for my phone here? A: I don’t – I don’t recall. I don’t recall if he did, no”]). But, contrary to defendant’s assertions (DB: 26-27), Natal’s uncertainty did nothing to render the testimony of Officer Gore and Roy on this point equivocal in any way or otherwise impeach that testimony. Moreover, defendant’s assertion that Roy could have been mistaken given his limited use of the English language is both unpreserved and completely meritless. Defense counsel never objected to Roy’s ability to testify through the interpreter at all, let alone objected to Roy’s testimony on this point (Roy: 349). See People v. Basora, 75 N.Y.2d 992 (1990). In any event, as Roy’s testimony makes clear, he understood the question and answered unequivocally that he did not recall defendant mentioning his cell phone (Roy: 349). 15 In addition to the inconsistencies and impossibilities in defendant’s cell phone story, defendant’s testimony about his attempted escape was also implausible. Specifically, defendant testified that Officer Gore, without provocation, punched the handcuffed defendant twice in the face and pepper sprayed him, causing defendant to run away for his life (Joseph: 365-67, 384-88; Gore: 280-81). -29- 25). But, as discussed above, the trial proof fully supported the conclusion that defendant was searching the basement for the most valuable wares, even if he did not handle any of the merchandise. Although, in fact, the People did not need to prove the specific crime defendant intended commit in order for the jury to convict him of burglary. People v. Mahboubian, 74 N.Y.2d at 193 (to prove the crime of burglary, the People need not “allege or establish what particular crime was intended, or that the intended crime actually be committed”). Finally, defendant refers to the fact that, during deliberations, the jury twice requested and apparently carefully reviewed the surveillance video, essentially contending that this militates in his favor since the jury obviously struggled with the question of his intent. (Proceedings: 485, 493-94). Nothing could be further from the truth. That the jury spent time reviewing this evidence proves no more than this was a thoughtful jury that carefully weighed this evidence. And, after having an “opportunity to view the witnesses, hear the testimony, and observe demeanor,” including this video, the jury concluded that defendant entered the basement with the intent to commit a crime therein. See People v. Bleakley, 69 N.Y.2d at 495. Because this finding was well-supported by the evidence and not “manifestly erroneous,” it should not be disturbed on appeal. See People v. Porto, 226 A.D.2d at 190. * * * All told, the People proved defendant’s guilt with overwhelming evidence. -30- CONCLUSION The judgment of conviction should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County danyappeals@dany.nyc.gov CHRISTOPHER P. MARINELLI DIANE PRINC Assistant District Attorneys Of Counsel July 2014 -31- PRINTING SPECIFICATIONS STATEMENT The word count for this brief is 8252, excluding the Table of Contents and Table of Authorities. The word processing system used to prepare this brief and to calculate the word count was Microsoft Word 2010. The brief is printed in Garamond, a serifed, proportionally spaced typeface. The type size is 14 points in the text and headings, and 13 points in the footnotes.