PEOPLE v. WILSON (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  Defendant appeals from a judgment convicting him upon a jury verdict of conspiracy in the fourth degree (Penal Law § 105.10 [1] ).  Defendant's conviction stems from an incident in which he and three codefendants drove from New Jersey and parked their vehicle near a mobile home in Bath at approximately 4:30 a.m. The resident of the mobile home, hearing the unusual sound of car doors closing outside her residence, called the police.  When the police arrived less than two minutes later, defendant and codefendants fled and were apprehended shortly thereafter.  The police later found, inter alia, an airsoft pellet gun, head coverings, gloves, and garbage bags in the area near where defendant was apprehended.

Defendant contends that the verdict is repugnant because the jury acquitted him of attempted burglary in the second degree.  We reject that contention.  “ ‘[A] conviction will be reversed [as repugnant] only in those instances where acquittal on one crime as charged to the jury is conclusive as to a necessary element of the other crime, as charged, for which the guilty verdict was rendered’ ” (People v. Madore, 145 A.D.3d 1440, 1441, 46 N.Y.S.3d 300 [4th Dept. 2016], lv denied 29 N.Y.3d 1034, 62 N.Y.S.3d 303, 84 N.E.3d 975 [2017], quoting People v. Tucker, 55 N.Y.2d 1, 7, 447 N.Y.S.2d 132, 431 N.E.2d 617 [1981], rearg. denied 55 N.Y.2d 1039, 449 N.Y.S.2d 1030, 434 N.E.2d 1081 [1982];  see generally People v. Muhammad, 17 N.Y.3d 532, 538–541, 935 N.Y.S.2d 526, 959 N.E.2d 463 [2011] ).  If “there is a possible theory under which a split verdict could be legally permissible, it cannot be repugnant, regardless of whether that theory has evidentiary support in a particular case” (People v. DeLee, 24 N.Y.3d 603, 608, 2 N.Y.S.3d 382, 26 N.E.3d 210 [2014] [internal quotation marks omitted] ).  Upon reviewing the elements of the two crimes as charged to the jury (see id.), we conclude that the verdict of guilty of conspiracy in the fourth degree is not repugnant to the acquittal of attempted burglary in the second degree (see People v. Gary, 115 A.D.3d 760, 761, 981 N.Y.S.2d 602 [2d Dept. 2014], affd 26 N.Y.3d 1017, 20 N.Y.S.3d 327, 41 N.E.3d 1142 [2015];  People v. Williams, 146 A.D.3d 821, 822, 45 N.Y.S.3d 503 [2d Dept. 2017], lv denied 29 N.Y.3d 1088, 64 N.Y.S.3d 178, 86 N.E.3d 265 [2017] ).  Conspiracy in the fourth degree “is an offense separate and distinct from the crime” of attempted burglary in the second degree (People v. Bavisotto, 120 A.D.2d 985, 986, 502 N.Y.S.2d 867 [4th Dept. 1986], lv denied 68 N.Y.2d 912, 508 N.Y.S.2d 1033, 501 N.E.2d 606 [1986], cert denied 480 U.S. 933, 107 S.Ct. 1572, 94 L.Ed.2d 763 [1987] ), and the two crimes have “different basic elements” (People v. Smith, 61 A.D.2d 91, 98, 401 N.Y.S.2d 353 [4th Dept. 1978] ).

We reject defendant's contention that the evidence is legally insufficient to establish that an agreement existed between defendant and his codefendants to commit burglary in the second degree.  “A conspiracy consists of an agreement to commit an underlying substantive crime (here, [burglary in the second degree] ), coupled with an overt act committed by one of the conspirators in furtherance of the conspiracy” (People v. Caban, 5 N.Y.3d 143, 149, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005];  see Penal Law §§ 105.10[1];  105.20).  An “agreement[, either express or implied,] may be established inferentially by circumstances indicating that defendant engaged in a common effort or acted in concert with others to achieve a common goal” (People v. Givens, 181 A.D.2d 1031, 1031, 582 N.Y.S.2d 577 [4th Dept. 1992], lv denied 79 N.Y.2d 1049, 584 N.Y.S.2d 1017, 596 N.E.2d 415 [1992];  see generally People v. Reyes, 31 N.Y.3d 930, 931, 72 N.Y.S.3d 520, 95 N.E.3d 562 [2018];  People v. Smoke, 43 A.D.3d 1332, 1333, 843 N.Y.S.2d 875 [4th Dept. 2007], lv. denied 9 N.Y.3d 1039, 852 N.Y.S.2d 24, 881 N.E.2d 1211 [2008] ).  Viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we conclude that “ ‘there is a valid line of reasoning and permissible inferences from which a rational jury could have found [an agreement to commit burglary in the second degree] beyond a reasonable doubt’ ” (People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).  In addition, viewing the evidence in light of the elements of the crime as charged to the jury (see id.), we reject defendant's contention that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).