PEOPLE v. JOHNSON (2025)

Judgment, Supreme Court, New York County (Robert Mandelbaum, J.), rendered December 3, 2018, convicting defendant, after a jury trial, of burglary in the first degree, burglary in the second degree, two counts of robbery in the second degree, attempted grand larceny in the fourth degree, and criminal possession of stolen property in the fifth degree, and sentencing him to concurrent prison terms of 15 years on the burglary in the first degree and robbery second degree counts, to run consecutively to concurrent five years on the burglary in the second degree count and one year terms on the grand larceny and possession of stolen property count, for an aggregate total of 20 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentences on the burglary in the first degree and robbery in the second degree counts to 11 years, for an aggregate sentence of 16 years, and otherwise affirmed.

The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007];  see also People v. Baque, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2024 N.Y. Slip Op. 05244 [2024]).  Initially, there is no basis to disturb the jury's credibility determinations.  As for the first-degree burglary count, the evidence supported the conclusion that defendant unlawfully gained access to the first victim's apartment building through deceptive means (see e.g., People v. Brevard, 149 A.D.3d 546, 546, 51 N.Y.S.3d 514 [1st Dept. 2017], lv denied 30 N.Y.3d 947, 67 N.Y.S.3d 131, 89 N.E.3d 521 [2017];  People v. Johnson, 190 A.D.2d 503, 503–504, 593 N.Y.S.2d 35 [1st Dept. 1993], affd 82 N.Y.2d 683, 601 N.Y.S.2d 468, 619 N.E.2d 405 [1993]).  There was ample basis for the jury to conclude that defendant knowingly presented inaccurate photos online, of an obviously different person, and that the victim buzzed defendant into his building believing he would either be getting a massage or having a sexual encounter with the man depicted in the photos.  The evidence also supported the inference that defendant intended to commit a crime when he entered the building under these deceptive circumstances (see People v. Lamont, 25 N.Y.3d 315, 319, 12 N.Y.S.3d 6, 33 N.E.3d 1275 [2015];  People v. Thomas, 203 A.D.3d 634, 635, 165 N.Y.S.3d 531 [1st Dept. 2022], lv denied 38 N.Y.3d 1136, 172 N.Y.S.3d 848, 193 N.E.3d 513 [2022];  People v. Green, 144 A.D.3d 589, 589, 42 N.Y.S.3d 24 [1st Dept. 2016], lv denied 28 N.Y.3d 1184, 52 N.Y.S.3d 711, 75 N.E.3d 103 [2017]).  Upon arrival, defendant attempted to force his way into the victim's apartment when the victim refused to let him in.  With his codefendant, defendant immediately attacked the victim, attempted to grab his possessions, and ultimately assisted his codefendant in fleeing with the victim's phone.

We also find that the evidence supported the jury's verdict on the second-degree robbery counts.  There was significant evidence presented, including video footage of the incident, establishing that defendant and his codefendant attacked the first victim together.  The evidence also established that defendant assisted his codefendant in grabbing the victim's phone during the attack (see Penal Law §§ 20.00, 160.10[1], 160.10[2][a];  see e.g. People v. Black, 121 A.D.3d 544, 544, 993 N.Y.S.2d 890 [1st Dept. 2014], lv denied 24 N.Y.3d 1118, 3 N.Y.S.3d 759, 27 N.E.3d 473 [2015]).  The jury had ample reason to reject defendant's claim that he only attacked the victim as a means of defending himself and that he did not know that his codefendant took the phone.

As for the burglary in the second-degree conviction concerning the second victim, the evidence supported the jury's conclusion that defendant remained unlawfully in the victim's hotel room even after he was asked to leave, and that he remained there with the intent to commit a crime (see Penal Law § 140.25[2]).  The jury had ample reason to conclude that defendant took the victim's passports and other documents in order to unlawfully demand money from him.  It also had ample reason to reject defendant's illogical testimony that he took these documents as a means of proving that he was not a robber, in case the victim reported him to police.

Defendant's challenges to the prosecutor's comments in their opening statement and in summation are unpreserved (see People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 [2006]), and we decline to consider them in the interest of justice.  As an alternative holding, we find no basis for reversal (see People v. D'Alessandro, 184 A.D.2d 114, 118–119, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993]).

We find the sentence excessive to the extent indicated.