PEOPLE v. THOMAS

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Supreme Court, Appellate Division, Third Department, New York.

The PEOPLE of the State of New York, Respondent, v. Louis THOMAS, Appellant.

Decided: March 29, 2007

Before:  CARDONA, P.J., PETERS, SPAIN, CARPINELLO and KANE, JJ. George F. Mehm, Acting Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant. P. David Soares, District Attorney, Albany (Laura M. Conley of counsel), for respondent.

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered November 16, 2005, upon a verdict convicting defendant of the crime of burglary in the third degree.

On February 27, 2005, defendant went to a laundromat in the City of Albany and used the machines.   The owner's nephew, who was working there alone, collected and counted the coins from the machines and placed them in a bag in a private storage room.   He then began mopping the floors but forgot to lock the storage room door.   While his back was turned, defendant-apparently the only customer on the premises at the time-opened the door to the storage room, entered it and then quickly exited, closing the door behind him and leaving the laundromat with something draped over his arm.   The store's surveillance camera recorded the incident on the hard drive of the owner's computer, although the view of what defendant held in his hands was obstructed.   Upon returning to the storage room, the employee discovered that the bag containing in excess of $300 in quarters had vanished.   The portion of the recording which captured this incident was copied onto a DVD and turned over to police, and it was played at defendant's trial.   Approximately two weeks after the incident, defendant was arrested when he returned to the laundromat around closing time.   Following a jury trial, defendant was convicted of burglary in the third degree, but acquitted of petit larceny.   Sentenced as a second felony offender to a prison term of 3 1/414 to 6 1/212 years, defendant now appeals.

 Defendant primarily challenges the verdict as unsupported by legally sufficient evidence, a claim we find to be without merit (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).   Viewed in a light most favorable to the People (see People v. Calabria, 3 N.Y.3d 80, 81, 783 N.Y.S.2d 321, 816 N.E.2d 1257 [2004] ), the trial evidence, including the surveillance video, established that although the laundromat was open to the public, defendant knowingly and unlawfully entered the private storage room, which was not open to the public, with intent to commit a crime therein (see Penal Law § 140.20;  People v. Terry, 2 A.D.3d 977, 978, 768 N.Y.S.2d 516 [2003], lv. denied 2 N.Y.3d 746, 778 N.Y.S.2d 472, 810 N.E.2d 925 [2004];  see also People v. Harris, 19 A.D.3d 171, 172, 798 N.Y.S.2d 386 [2005], lv. denied 5 N.Y.3d 789, 801 N.Y.S.2d 810, 835 N.E.2d 670 [2005];  People v. Quinones, 18 A.D.3d 330, 330, 795 N.Y.S.2d 47 [2005], lv. denied 5 N.Y.3d 809, 803 N.Y.S.2d 38, 836 N.E.2d 1161 [2005];  People v. Daniels, 8 A.D.3d 1022, 1023, 778 N.Y.S.2d 241 [2004], lv. denied 3 N.Y.3d 705, 785 N.Y.S.2d 32, 818 N.E.2d 674 [2004];  People v. Durecot, 224 A.D.2d 264, 264-265, 638 N.Y.S.2d 16 [1996], lvs. denied 88 N.Y.2d 878, 645 N.Y.S.2d 452, 668 N.E.2d 423 [1996] ).   The testimony also established that while there was no sign on the door to the storage room, it clearly was a private area containing cleaning supplies and an employee restroom which was always kept locked and was not open to the public;  the fact that it had been inadvertently “left unlocked does not preclude finding that [the] entry was unlawful” (People v. Terry, supra at 978, 768 N.Y.S.2d 516;  see People v. Harris, supra at 172, 798 N.Y.S.2d 386;  People v. Daniels, supra at 1023, 778 N.Y.S.2d 241).

Indeed, “[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];  see People v. Durecot, supra at 264, 638 N.Y.S.2d 16).   The questions of whether the storage room was open to the public and whether defendant knowingly entered a nonpublic area are ordinarily matters to be resolved by the factfinder (see People v. Daniels, supra at 1023, 778 N.Y.S.2d 241;  People v. Ayuso, 204 A.D.2d 472, 472, 614 N.Y.S.2d 162 [1994], lv. denied 83 N.Y.2d 964, 616 N.Y.S.2d 16, 639 N.E.2d 756 [1994] ), and we find ample evidence to support the verdict in that regard (see People v. Jones, 238 A.D.2d 130, 130, 655 N.Y.S.2d 944 [1997], lv. denied 90 N.Y.2d 895, 662 N.Y.S.2d 437, 685 N.E.2d 218 [1997] ).   Moreover, defendant's intent was readily inferable from his recorded furtive conduct and the surrounding circumstances of his entry (see People v. Gaines, 74 N.Y.2d 358, 362 n. 1, 547 N.Y.S.2d 620, 546 N.E.2d 913 [1989];  People v. Barnes, 50 N.Y.2d 375, 381, 429 N.Y.S.2d 178, 406 N.E.2d 1071 [1980];  People v. Mackey, 49 N.Y.2d 274, 279-280, 425 N.Y.S.2d 288, 401 N.E.2d 398 [1980];  People v. Mustafa, 10 A.D.3d N.Y.S.2d 820, 820 N.E.2d 299 [2004] ).

Next, defendant takes issue with County Court's denial of his CPL 330.30(1) motion to set aside the verdict, which was based upon the claim that the People had limited the theory of the burglary prosecution to intent to commit a larceny in the storage room, which they failed to prove.   We uphold the court's ruling, as the motion was based upon several erroneous suppositions.   As a threshold matter, the defense never raised these specific claims in its motion to dismiss at the close of proof or otherwise, made no request that the jury be so charged and did not object to the charge as given and, thus, the claims are unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ).   As such, they are not of the type that, if raised on appeal, would “require a reversal ․ as a matter of law” (CPL 330.30[1];  see CPL 470.15[4] ).

 Further, contrary to defendant's claims, the People were required to prove only defendant's general intent to commit a crime in the room, having never expressly limited their burglary theory to a particular crime (see People v. Lewis, 5 N.Y.3d 546, 552, 807 N.Y.S.2d 1, 840 N.E.2d 1014 [2005];  People v. Mahboubian, 74 N.Y.2d 174, 193, 544 N.Y.S.2d 769, 543 N.E.2d 34 [1989];  People v. Mackey, supra at 278-281, 425 N.Y.S.2d 288, 401 N.E.2d 398;  cf. People v. Barnes, supra at 379, 379 n. 3, 429 N.Y.S.2d 178, 406 N.E.2d 1071).  “Inclusion of a larceny count in the same indictment did not limit the prosecution's theory under the burglary count” (People v. Gilbo, 28 A.D.3d 945, 945, 813 N.Y.S.2d 574 [2006], lv. denied 7 N.Y.3d 756, 819 N.Y.S.2d 881, 853 N.E.2d 252 [2006] [citation omitted] ), “nor is it necessary that the intended crime in fact be committed” (People v. Mackey, supra at 279, 425 N.Y.S.2d 288, 401 N.E.2d 398).

 We also find no error in County Court's denial of defendant's request for an evidentiary hearing on his claim that the People's failure to provide a copy of the complete digitally recorded video of the entire time that he was at the laundromat violated his due process right to exculpatory material under Brady (see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 [1963] ).   The complete digital recording was automatically recorded over on the owner's hard drive after 30 days, prior to defendant's request;  it was never in the possession or control of the police or prosecutor, who were given a DVD with only the 2 1/212-minute segment showing defendant entering and exiting the storage room and leaving the building (see People v. Santorelli, 95 N.Y.2d 412, 421, 718 N.Y.S.2d 696, 741 N.E.2d 493 [2000];  People v. Bowers, 4 A.D.3d 558, 559-560, 771 N.Y.S.2d 270 [2004], lv. denied 2 N.Y.3d 796, 781 N.Y.S.2d 295, 814 N.E.2d 467 [2004];  People v. Buanno, 296 A.D.2d 600, 602, 745 N.Y.S.2d 590 [2002], lv. denied 98 N.Y.2d 695, 747 N.Y.S.2d 413, 776 N.E.2d 2 [2002];  cf. CPL 240.20[1] [h];  [2];  People v. Bryce 88 N.Y.2d 124, 128-129, 643 N.Y.S.2d 516, 666 N.E.2d 221 [1996] ).   Further, defendant's allegations regarding the exculpatory potential of the remainder of the video were purely speculative and conclusory and did not entitle him to a hearing (see People v. Burt, 246 A.D.2d 919, 923-924, 668 N.Y.S.2d 413 [1998], lv. denied 91 N.Y.2d 1005, 676 N.Y.S.2d 133, 698 N.E.2d 962 [1998] ).

We have examined defendant's remaining claims, including his request that the sentence should be reduced in the interest of justice, and find they have no merit.

ORDERED that the judgment is affirmed.

SPAIN, J.

CARDONA, P.J., PETERS, CARPINELLO and KANE, JJ., concur.

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