State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: August 6, 2015 106501 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK, 

Respondent,

v MEMORANDUM AND ORDER

ANGEL GARCIA,

Appellant.

________________________________

Calendar Date: June 3, 2015

Before: Peters, P.J., McCarthy, Egan Jr. and Rose, JJ.

__________

Catherine A. Barber, Albany, for appellant.

D. Holley Carnright, District Attorney, Kingston (Joan

Gudesblatt Lamb of counsel), for respondent.

__________

McCarthy, J.

Appeal from a judgment of the County Court of Ulster County

(Williams, J.), rendered October 18, 2013, upon a verdict

convicting defendant of the crime of burglary in the second

degree.

Defendant was indicted for the crime of burglary in the

second degree in relation to his alleged involvement in the

burglary of a residence in Ulster County, during which

approximately $56,000 was stolen. Defendant's alleged

accomplice, Eric Fehring, implicated him in the burglary during

an interview with police after a traffic stop on the day of the

incident. Police thereafter verified Fehring's story by visiting

the victim's house and conducting a controlled phone call between

defendant and Marcella Battista, Fehring's girlfriend at the
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time. Defendant was then arrested without a warrant five days

after the burglary. Following a jury trial, defendant was

convicted as charged, sentenced to a prison term of 15 years, to

be followed by five years of postrelease supervision, and ordered

to pay restitution in the amount of $27,500. Defendant now

appeals.

Defendant contends that his conviction is not supported by

legally sufficient evidence and is against the weight of the

evidence. As is relevant here, the People were required to

establish that defendant knowingly entered a dwelling with the

intent to commit a crime therein (see Penal Law § 140.25 [2]). 

According to Fehring, he and defendant discussed burglarizing the

victim's home while at Battista's house on the day before the

burglary. They then drove to the victim's house the following

morning, entered through a broken window and took large amounts

of cash and a locked, blue safe containing more cash. Although

"[a] defendant may not be convicted solely on the basis of

accomplice testimony that lacks the support of 'corroborative

evidence'" (People v Rodriguez, 121 AD3d 1435, 1439 [2014], lv

denied 24 NY3d 1122 [2015], quoting CPL 60.22 [1]), sufficient

evidence was adduced at trial to "harmonize [Fehring]'s narrative

so as to provide the necessary corroboration" (People v Caban, 5

NY3d 143, 155 [2005] [internal quotation marks and citation

omitted]; see People v Miles, 119 AD3d 1077, 1079 [2014], lvs

denied 24 NY3d 1003 [2014]; People v Gilbo, 52 AD3d 952, 953

[2008], lv denied 11 NY3d 788 [2008]). Battista's testimony

corroborated Fehring's account of his conversation with defendant

on the day before the burglary. Video footage from a gas station

shows defendant and Fehring together on the morning of the

burglary, and Battista testified that she saw them together that

afternoon. Defendant also made admissions regarding the location

of the victim's house during a controlled call with Battista, a

recording of which was played for the jury. Police found large

amounts of cash and various goods on Fehring's person on the day

of the burglary. Additionally, several days later, police

recovered the blue safe from a lake in the area where Fehring

testified that he and defendant had driven and disposed of the

safe in a body of water. We therefore find that the People

provided "'enough nonaccomplice evidence to assure that the

accomplice[] . . . offered credible probative evidence'" (People
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v Miles, 119 AD3d at 1079, quoting People v Breland, 83 NY2d 286,

293 [1994]) that "tend[ed] to connect defendant to the crime

charged" (People v Besser, 96 NY2d 136, 143-144 [2001] [internal

quotation marks and citation omitted]; see People v Brown, 62

AD3d 1089, 1090 [2009], lvs denied 13 NY3d 742 [2009]). Further,

the jury was entitled to credit Fehring's testimony that

defendant jointly participated in the burglary and, deferring to

those credibility determinations, we do not find defendant's

conviction to be against the weight of the evidence (see People v

Brown, 62 AD3d at 1091).

Contrary to defendant's contention on appeal, County Court

correctly found that the police had probable cause to arrest him. 

"Probable cause does not require proof sufficient to warrant a

conviction beyond a reasonable doubt but merely information

sufficient to support a reasonable belief that an offense has

been . . . committed by the person arrested" (People v Green, 127

AD3d 1473, 1473 [2015] [internal quotation marks and citations

omitted]; accord People v Shulman, 6 NY3d 1, 25 [2005], cert

denied 547 US 1043 [2006]). Here, such probable cause was

established by Fehring's implication of defendant in the

burglary, his ability to lead law enforcement to the victim's

house and the information provided by Fehring concerning the

hours leading up to the burglary (see People v Berzups, 49 NY2d

417, 427 [1980]; People v Green, 127 AD3d at 1474; People v

Nicholas, 118 AD3d 1183, 1187 [2014], lvs denied 24 NY3d 1121,

1122 [2015]). Further, defendant's subsequent arrest by his

parole officer, who was informed of the foregoing information by

the investigating officer, was proper under the fellow officer

rule (see People v Ramirez-Portoreal, 88 NY2d 99, 113-114 [1996];

see also People v Porter, 101 AD3d 44, 47 [2012], lvs denied 20

NY3d 1064, 1065 [2013]). 

Defendant's argument that County Court was required to

instruct the jury that Battista was an accomplice, and that her

testimony was thus subject to the same corroboration requirements

as that of Fehring, is unpreserved and, in any event, without

merit. Given that the only evidence tying Battista to the

burglary was her presence for the initial conversation between

defendant and Fehring, there was no evidence that she "took part

in the preparation or perpetration of the [burglary] with intent
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to assist therein" (People v Weaver, 52 AD3d 138, 140 [2008]

[internal quotation marks and citation omitted], revd on other

grounds 12 NY3d 433 [2009]; see People v Moyer, 75 AD3d 1004,

1005 [2010]; compare People v Adams, 307 AD2d 475, 476-477

[2003], lv denied 1 NY3d 566 [2003]). Defendant's related

argument that he was deprived of the effective assistance of

counsel due to his attorney's failure to request a corroboration

instruction with respect to Battista's testimony thus also fails,

as "counsel cannot be faulted for failing to raise an issue that

has little or no chance of success" (People v Morrison, 127 AD3d

1341, 1345 [2015] [internal quotation marks and citation

omitted]; see People v Stultz, 2 NY3d 277, 287 [2004]; People v

Moyer, 75 AD3d at 1007). Defendant also asks us to employ "the

clarity of hindsight" to determine how counsel's crossexamination of Fehring "might have been more effective" (People v

Thomas, 105 AD3d 1068, 1071 [2013] [internal quotation marks and

citation omitted], lv denied 21 NY3d 1010 [2013]), which we

decline to do. Moreover, defendant has not met his "high burden"

(People v Hobot, 84 NY2d 1021, 1022 [1995]) of "demonstrat[ing]

the absence of strategic or other legitimate explanations" for

the remainder of counsel's alleged shortcomings (People v Thomas,

105 AD3d at 1071 [internal quotation marks and citation omitted];

accord People v Baker, 14 NY3d 266, 270-271 [2010]).

Finally, while defendant received the maximum sentence

permitted by law for his conviction of burglary in the second

degree (see Penal Law §§ 70.02 [1] [b]; [3] [b]; 140.25), we find

no abuse of discretion by County Court in light of his extensive

criminal history (see People v Fomby, 119 AD3d 1293, 1293 [2014];

People v Edwards, 96 AD3d 1089, 1092 [2012], lv denied 19 NY3d

1102 [2012]). Additionally, the fact that Fehring received a

lesser sentence is not a compelling reason to reduce defendant's

sentence; Fehring, unlike defendant, entered a plea agreement

and, pursuant to it, testified against defendant (see generally

People v Selikoff, 35 NY2d 227, 234 [1974], cert denied 419 US

1122 [1975]; People v Morrison, 71 AD3d 1228, 1230 [2010], lvs

denied 15 NY3d 747, 754 [2010]; People v Manley, 70 AD3d 1125,

1125 [2010]). 

Peters, P.J., Egan Jr. and Rose, JJ., concur.
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ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court