State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 16, 2016 106616 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

DANIEL J. CARTER,

Appellant.

________________________________

Calendar Date: April 26, 2016

Before: Peters, P.J., Lahtinen, Egan Jr., Devine and Mulvey, JJ.

__________

Susan Patnode, Rural Law Center of New York, Castleton

(Kelly L. Egan of counsel), for appellant.

Alexander Lesyk, Special Prosecutor, Norwood, for

respondent.

__________

Lahtinen, J.

Appeal from a judgment of the County Court of St. Lawrence

County (Richards, J.), rendered January 18, 2013, upon a verdict

convicting defendant of the crime of burglary in the second

degree.

On September 13, 14 and 16, 2011, defendant allegedly

entered and took money from the home of an 81-year-old neighbor

(hereinafter the victim). He also allegedly entered and took

cash from a car parked in a garage attached to the home of

another neighbor on September 16, 2011. Following an

investigation in which he gave an inculpatory statement to

police, he was charged with three counts of burglary in the

second degree. A jury acquitted him of two of the counts, but
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found him guilty of the burglary charge involving the entry of

the victim's home on September 16, 2011. County Court sentenced

him to 10 years in prison together with postrelease supervision. 

Defendant appeals.

Defendant contends that the evidence was legally

insufficient to establish that he did not have the consent of the

victim to enter the victim's home (see Penal Law §§ 140.00 [5];

140.25 [2]; People v Graves, 76 NY2d 16, 20 [1990]). The victim,

who was elderly and infirm, occasionally had defendant perform

chores for him on his property. Defendant had permission to be

in the home to do such work while the victim was home. The

victim, however, stated on direct examination that defendant did

not have permission to enter the home on September 16, 2011. The

victim was away when defendant entered on that date, and there

was evidence from a neighbor watching the property that defendant

accessed the house through a rear cellar door, reflecting that he

did not want to be seen entering the home. The victim's

testimony was not free from any ambiguity. For example, when

cross-examined about a statement given to police after the

September 14, 2011 incident but before the September 16, 2011

incident, the victim was asked whether he told police that

defendant had permission to be in his home to use the bathroom

when the victim was not home, and the victim responded that

defendant had "access" to the home and "[p]ossibly" had

permission to use the bathroom. Nonetheless, there was adequate

proof to corroborate defendant's statement in which he

acknowledged that he was "not supposed to" be in the house (see

People v Wilbur, 108 AD3d 878, 879 [2013]). Viewed in the light

most favorable to the People, a rational jury could have found,

with respect to the September 16, 2011 entry of the victim's

home, each of the elements of burglary in the second degree

beyond a reasonable doubt (see People v Danielson, 9 NY3d 342,

349 [2007]; People v Briggs, 129 AD3d 1201, 1204 [2015], lv

denied 26 NY3d 1038 [2015]). Further, upon independently

weighing the evidence and considering it in a neutral light while

according deference to the jury's credibility determinations, we

do not find the verdict to be against the weight of the evidence

(see People v Romero, 7 NY3d 633, 643-646 [2006]; People v

Morrison, 127 AD3d 1341, 1343 [2015], lv denied 26 NY3d 932

[2015]). 
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Defendant asserts several errors regarding the suppression

hearing, none of which we find persuasive. With respect to the

alleged error by County Court in reopening the hearing, this

issue is unpreserved since the hearing was reopened on

defendant's motion and without objection from defendant (see

People v Lewis, 117 AD3d 751, 751 [2014], lv denied 24 NY3d 1085

[2014]). Although the arresting officer did not have personal

knowledge of facts providing probable cause for the arrest, he

was acting on the direction of the officer who had been

investigating the crimes and sufficient proof was presented to

establish a lawful arrest under the fellow officer rule (see

People v Ketcham, 93 NY2d 416, 419-420 [1999]; People v Taylor,

134 AD3d 1165, 1169-1170 [2015], lv denied 26 NY3d 1150 [2016];

People v Lubrano, 117 AD3d 1239, 1240 [2014], lv denied 25 NY3d

990 [2015]). County Court credited the officers' testimony and,

deferring to those credibility determinations, there is ample

proof to support the court's finding that defendant's statement

was voluntary in that he was fully informed of, understood and

waived his Miranda rights before any questioning commenced (see

People v Nadal, 131 AD3d 729, 730 [2015], lv denied 26 NY3d 1041

[2015]; People v Mattis, 108 AD3d 872, 874 [2013], lvs denied 22

NY3d 957 [2013]). 

The remaining arguments do not require extended discussion. 

Since defendant's conviction is "supported by legally sufficient

trial evidence, [his] challenges to the instructions given during

the grand jury proceeding are precluded" (People v Cotton, 120

AD3d 1564, 1566 [2014] [internal quotation marks, brackets,

ellipsis and citations omitted], lv denied 27 NY3d 963 [2016];

accord People v Gibson, 137 AD3d 1657, 1658 [2016]) and, in any

event, do not set forth error requiring reversal (see People v

Pacheco, 56 AD3d 381, 384 [2008], lv denied 12 NY3d 786 [2009]). 

Defendant was not denied the effective assistance of counsel. 

His attorney, who pursued a cogent strategy and obtained an

acquittal on two of the three charges against defendant, provided

meaningful representation (see e.g. People v Caban, 5 NY3d 143,

152 [2005). In light of defendant's lack of remorse and the fact

that the sentence was well below the statutory maximum, we find

neither extraordinary circumstances nor an abuse of discretion

warranting a reduction of his sentence (see People v Gigliuto, 22

AD3d 890, 892 [2005], lv denied 7 NY3d 789 [2006]), and County
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Court's comments at sentencing do not reflect bias affecting the

sentence imposed (see People v Ganoe, 122 AD3d 1003, 1003-1004

[2014], lv denied 25 NY3d 1163 [2015]; People v Boccaccio, 288

AD2d 898, 898 [2001]; People v Neish, 232 AD2d 744, 746-747

[1996], lv denied 89 NY2d 927 [1996]). 

Peters, P.J., Egan Jr., Devine and Mulvey, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court