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People v. Wilborn

Supreme Court of New York, Second Department

August 1, 2018

The People, etc., respondent,
v.
Octavious D. Wilborn, appellant. Ind. No. 15-00367

          Submitted - April 30, 2018

         D56280 C/htr

          Philip H. Schnabel, Chester, NY, for appellant, and appellant pro se.

          David M. Hoovler, District Attorney, Middletown, NY (Nicholas D. Mangold of counsel), for respondent.

          RUTH C. BALKIN, J.P. ROBERT J. MILLER VALERIE BRATHWAITE NELSON LINDA CHRISTOPHER, JJ.

          DECISION & ORDER

         Appeal 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 physical evidence.

         ORDERED that the judgment is affirmed.

         The defendant was convicted of two counts of burglary in the second degree based on incidents that occurred in December 2014 and January 2015.

         The defendant failed to preserve for appellate review his contention regarding service of a late alibi notice (see CPL 470.05[2]; 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[1]; 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 403, 415).

          The 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).

         The 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[2]; 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[37], 300.50[2]; Penal Law §§ 165.54, 165.52, 165.50, 165.45, 165.40, 140.25). Therefore, the court would have properly rejected such a proposed charge.

         The 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).

         In his 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[1][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 415)).

         The 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[2]). In any event, the record does not reveal any such bias or prejudice (see People ...


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