People v. Thomas

33 A.D.3d 1053, 822 N.Y.S.2d 805

Opinion

Peters, J.

Appeal from a judgment of the County Court of St. Lawrence County (Rogers, J.), rendered July 11, 2005, upon a verdict convicting defendant of the crime of burglary in the second degree.

Defendant and his brother, codefendant Terry D. Thomas, were indicted for burglary in the second degree as a result of their unlawful entry into a residence owned by their parents in the Town of Russell, St. Lawrence County. At the time of the burglary, the home was rented to Karl Whiteford who had been living there for more than a year with his daughter and her boyfriend. They were in the process of moving out and understood that they had until the end of February 2004 to remove their belongings. When defendant and his brother entered the home on February 19, 2004, the tenants were out. They removed a number of items, including two televisions, a stereo, a hunting bow and case, and a mounted deer head. Convicted of burglary in the second degree and sentenced to three years in prison with five years of postrelease supervision, defendant appeals and we affirm.

Footnotes

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We find the evidence legally sufficient to support the conviction. Contrary to defendant’s assertion, the evidence established that the building from which he stole property was a dwelling (see Penal Law § 140.00 [3]) which had been rented to a tenant. Although the home may have been unoccupied at the precise time of the burglary, it was still a dwelling within the parameters of the Penal Law (see Penal Law § 140.00 [3]; see People v Barney, 99 NY2d 367, 372 [2003]). With further evidence establishing that defendant entered the residence with intent to commit a crime therein, it was for the jury to assess the contrary assertion that he was cleaning out the residence for his father (see People v Marmulstein, 6 AD3d 879, 880-881 [2004], lv denied 3 NY3d 660 [2004]).

Next challenging the testimony of the alleged accomplice, Ellie Matthie, we agree that defendant may not be convicted solely upon her testimony if it is unsupported by corroborative evidence tending to connect him with the commission of the charged crime. But, where there are differing inferences to be drawn from the evidence regarding the complicity of a witness, it is for the jury to decide whether that witness is an accomplice (see CPL 60.22 [2]; People v Adams, 307 AD2d 475, 475-476 [2003], lv denied 1 NY3d 566 [2003]). Here, Matthie testified that she was riding in the vehicle with defendant and his brother when they went to commit the burglary. She testified that she did not know why they were going to the residence and that when they entered the dark home, they did not turn on the lights. When they left carrying property, they admitted to her, after her questioning, that they were stealing the objects. Under these circumstances, the jury was entitled to find that she was not acting as an accomplice. Had she been so considered, we would have found her testimony corroborated. Defendant’s parents confirmed that defendant and his brother were at their house on the night of the burglary and they were in possession of the stolen mounted deer head on the following night.

The jury was also empowered to resolve the conflicting testimony concerning whether defendant had a lawful right to enter the home (see People v Bleakley, 69 NY2d 490, 495 [1987]; People v Zabala, 290 AD2d 578, 579-580 [2002], lv denied 97 NY2d 735 [2002]). Considering the evidence in its totality, we find that the verdict was not against the weight of the evidence.

Nor do we find error in permitting the People to reopen their case. Acknowledging that such decision rests within County Court’s discretion which will not be disturbed absent evidence of abuse (see CPL 260.30; People v Whipple, 97 NY2d 1, 6-7 [2001]; People v Duplessis, 16 AD3d 846, 847 [2005], lv denied 4 NY3d 853 [2005]), the evidence revealed that the court was misinformed concerning an agreement between the People and the defense not to introduce black gloves purportedly worn by defendant during the burglary. For that reason, it properly conducted a suppression hearing in the midst of the trial. Based upon the evidence presented, it appropriately denied the motion.

Defendant’s ineffective assistance of counsel claim is also without merit. While counsel did not object to County Court’s jury instructions or specifically request a charge concerning Matthie’s status as a purported accomplice, we cannot conclude that this conduct constitutes ineffective assistance of counsel. Counsel pursued a strategy to convince the jury that defendant was lawfully upon the premises; losing tactics do not constitute ineffective assistance of counsel (see People v Jackson, 25 AD3d 1012, 1015 [2006], lv denied 6 NY3d 849 [2006]). Our objective evaluation of counsel’s overall performance reveals reasonable competence (see People v Benevento, 91 NY2d 708, 712-713 [1998]).

We have considered defendant’s remaining ascriptions of error and find them to be without merit. However, we must vacate defendant’s sentence and remit the issue to County Court because defendant’s three-year prison sentence is one-half year less than the minimum authorized for the class C violent felony offense for which he was convicted (see Penal Law § 70.02 [1] [b]; [3] [b]; People v Sellers, 222 AD2d 941, 941 [1995]).

Cardona, P.J., Her cure, Carpinello and Rose, JJ., concur. Ordered that the judgment is modified, on the law, by vacating the sentence imposed; matter remitted to the County Court of St. Lawrence County for resentencing; and, as so modified, affirmed.

Defendant’s brother was also convicted of burglary in the second degree after a joint trial and his appeal is also before this Court (People v Thomas, 33 AD3d 1056 [2006] [decided herewith]).