Submitted - April 30, 2018
H. Schnabel, Chester, NY, for appellant, and appellant pro
M. Hoovler, District Attorney, Middletown, NY (Nicholas D.
Mangold of counsel), for respondent.
C. BALKIN, J.P. ROBERT J. MILLER VALERIE BRATHWAITE NELSON
LINDA CHRISTOPHER, JJ.
DECISION & ORDER
by the defendant from a judgment of the County Court, Orange
County (Nicholas DeRosa, J.), rendered May 26, 2016,
convicting him of burglary in the second degree (two counts),
upon a jury verdict, and imposing sentence. The appeal brings
up for review the denial, without a hearing, of that branch
of the defendant's omnibus motion which was to suppress
that the judgment is affirmed.
defendant was convicted of two counts of burglary in the
second degree based on incidents that occurred in December
2014 and January 2015.
defendant failed to preserve for appellate review his
contention regarding service of a late alibi notice
(see CPL 470.05; see also People v
Irizarry, 298 A.D.2d 600; People v Bhoje, 275
A.D.2d 419). In any event, the defendant did not establish a
basis for service of a late alibi notice (see CPL 250.20;
People v Wahhab, 84 A.D.3d 982, 984; People v
Delacruz, 13 A.D.3d 642). Contrary to the
defendant's contention, the failure of trial counsel to
file a timely alibi notice or request leave to file a late
alibi notice did not deny the defendant the effective
assistance of counsel (see People v Coleman, 37
A.D.3d 489, 490; see also People v Ennis, 11 N.Y.3d
defendant's contention that the County Court should have
suppressed evidence obtained from an examination of his cell
phone is without merit. The search warrant application, which
was submitted with the defendant's omnibus motion papers,
established probable cause for the search and seizure of the
cell phone (see People v Polancobatista, 155 A.D.3d
1064, 1065; People v Wahhab, 84 A.D.3d at 983).
defendant failed to request that the County Court submit to
the jury the count of criminal possession of stolen property
as a purported lesser-included offense of burglary in the
second degree. Therefore, he failed to preserve for appellate
review the contention that the purported lesser-included
offense should have been submitted to the jury (see CPL
470.05; People v Borrello, 52 N.Y.2d 952, 953;
People v Young, 74 A.D.3d 1374, 1375). In any event,
criminal possession of stolen property is not a
lesser-included offense of burglary in the second degree,
because it is possible to commit the crime of burglary in the
second degree without concomitantly committing the crime of
criminal possession of stolen property. The crimes of
criminal possession of stolen property in the first through
fifth degrees all require the element of knowing possession
of stolen property with intent to benefit therefrom, an
element not present in the crime of burglary in the second
degree (see CPL 1.20, 300.50; Penal Law §§
165.54, 165.52, 165.50, 165.45, 165.40, 140.25). Therefore,
the court would have properly rejected such a proposed
sentence imposed was not excessive (see People v
Suitte, 90 A.D.2d 80). The record does not show that the
County Court penalized the defendant for exercising his right
to trial (see People v Ramirez, 157 A.D.3d 718, 720;
People v Murray, 116 A.D.3d 1068, 1069).
pro se supplemental brief, the defendant argues that the
County Court improperly empaneled an "anonymous"
jury. The record shows that the names of the prospective and
sworn jurors were disclosed in open court. Therefore, the
defendant's contention is without merit (see CPL
270.15[a]; [1-a]; cf. People v Flores, 153 A.D.3d
182), as is his contention that his trial counsel was
ineffective for failing to object to the purportedly
"anonymous" jury (see People v Coleman, 37
A.D.3d at 490; see also People v Ennis, 11 N.Y.3d at
defendant did not preserve for appellate review his
contention in his pro se supplemental brief regarding alleged
bias or prejudice on the part of jurors (see CPL 470.05).
In any event, the record does not reveal any such bias or
prejudice (see People ...