People v. Bethune

65 A.D.3d 749, 884 N.Y.S.2d 503
Appellate Division of the Supreme Court of the State of New York·Decided August 13, 2009·Published·Cited by 20 cases

Opinion

Garry, J.

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered March 10, 2008, convicting defendant following a nonjury trial of the crimes of burglary in the third degree and criminal possession of stolen property in the fifth degree.

In July 2007, a laptop was reported stolen from the administrative building of a cement plant in the Town of Coeymans, Albany County. Defendant was identified as a suspect after a plant employee recognized him from surveillance footage as an employee of a cleaning company that the plant had formerly used. This footage, taken the day before the laptop was reported missing, showed him carrying two laptop cases in the building’s third-floor office area. Police thereafter took defendant into custody and accompanied him to a pawn shop in the City of Schenectady, Schenectady County, where a laptop was recovered.

Defendant was indicted on one count each of burglary in the third degree and criminal possession of stolen property in the fourth degree. After a suppression hearing, County Court found that defendant had received inadequate Miranda warnings and suppressed the laptop and defendant’s related statements. He was convicted as charged following a bench trial. At sentencing, County Court reduced the criminal possession conviction to criminal possession of stolen property in the fifth degree, holding that the People had not adequately demonstrated the value of the stolen property that defendant allegedly possessed. Defendant was sentenced as a second felony offender to a prison term of 3V2 to 7 years on the burglary conviction and to a conditional discharge on the stolen property conviction. He now appeals.

Initially, defendant argues that the indictment should have been dismissed because it was instigated by an illegal arrest. He contends that the Coeymans police officers who arrested him lacked the authority to do so in Schenectady, lacked probable cause for the arrest, and administered inadequate Miranda warnings. This claim is without merit. Contrary to defendant’s contention, his Schenectady arrest was valid even though it did not take place in the jurisdiction where the arresting officers [751] were employed (see CPL 140.10 [3]). Further, the officers did not lack probable cause for the arrest. The information they acquired during their investigation, including the plant employee’s recognition of defendant on the surveillance footage, identifying information provided by defendant’s employer and parole officer, and the officers’ separate identification of defendant as the person shown in the surveillance footage after finding him in the vehicle previously identified by their investigation as belonging to the suspect, was sufficient to support the reasonable belief that defendant had committed the offense the officers were investigating (see People v Shulman, 6 NY3d 1, 25-26 [2005], cert denied 547 US 1043 [2006]; People v Terry, 2 AD3d 977, 978-979 [2003], lv denied 2 NY3d 746 [2004]). Defendant’s further argument regarding probable cause relative to an alleged discrepancy in computer serial numbers is based entirely on facts outside the record and, as such, is incapable of review on direct appeal (see People v Carroll, 299 AD2d 572, 572-573 [2002], lv denied 99 NY2d 625, 626 [2003]). Finally, as to the adequacy of the Miranda warnings, defendant received the appropriate relief when County Court suppressed the laptop and his related statements (see e.g. People v Baggett, 57 AD3d 1093, 1095 [2008]; People v Durrin, 32 AD3d 665, 667-668 [2006]).

Next, defendant contends that the evidence with respect to his burglary conviction was legally insufficient to prove that he “knowingly enter[ed] or remain[ed] unlawfully in a building with intent to commit a crime therein” (Penal Law § 140.20; see generally People v Gaines, 74 NY2d 358 [1989]). A person enters or remains unlawfully in a building “when he [or she] is not licensed or privileged to do so” (Penal Law § 140.00 [5]), an element capable of circumstantial proof (see Matter of Tyshawn J, 304 AD2d 331, 331 [2003]). Though the building’s lobby was open to the public, the statute specifically provides that a “license or privilege to enter or remain in a building which is only partly open to the public is not a license or privilege to enter or remain in that part of the building which is not open to the public” (Penal Law § 140.00 [5]). Defendant was video-graphically recorded on the third floor of the plant’s administrative building, a level that contained cubicles and open records (see e.g. People v Harris, 19 AD3d 171, 172 [2005], lv denied 5 NY3d 789 [2005]; People v Quinones, 18 AD3d 330, 330 [2005], lv denied 5 NY3d 809 [2005]; People v Terry, 2 AD3d at 978). Such a “clearly . . . private area . . . was not open to the public” (People v Thomas, 38 AD3d 1134, 1135 [2007], lv denied 9 NY3d 852 [2007]; see People v Powell, 58 NY2d 1009, 1010 [1983]; People v Daniels, 8 AD3d 1022, 1022-1023 [2004], lv [752] denied 3 NY3d 705 [2004]; People v Durecot, 224 AD2d 264, 264-265 [1996], lv denied 88 NY2d 878 [1996]; People v Lloyd, 180 AD2d 527, 527-528 [1992], lv denied 79 NY2d 1003 [1992]). Finally, defendant’s claim that he had entered the plant several days previously without objection does not demonstrate that he was licensed to enter on either occasion or that he reasonably believed that he was licensed do so (compare People v Tennant, 285 AD2d 817, 818-819 [2001]; People v McCargo, 226 AD2d 480, 480-481 [1996]; People v Uloth, 201 AD2d 926, 926-927 [1994]). County Court therefore properly determined that the evidence that defendant “knowingly enter[ed] or remain[ed] unlawfully” in the plant was legally sufficient to support his burglary conviction (Penal Law § 140.20; see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict is not against the weight of the evidence (see generally People v Romero, 7 NY3d 633 [2006]).

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People v. Bethune, 65 A.D.3d 749, 884 N.Y.S.2d 503 (N.Y. Ct. App. 2009).

65 A.D.3d 749 (People v. Bethune) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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