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People v. Delbrey

Supreme Court of New York, Third Department

January 16, 2020

The People of the State of New York, Respondent,
v.
Eduardo J. Delbrey, Appellant.

          Calendar Date: November 18, 2019

          Bruce Evans Knoll, Albany, for appellant.

          J. Anthony Jordan, District Attorney, Fort Edward (Taylor Fitzsimmons of counsel), for respondent.

          Before: Garry, P.J., Lynch, Mulvey, Aarons and Colangelo, JJ.

          Garry, P.J.

         Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered March 11, 2016, upon a verdict convicting defendant of the crimes of burglary in the first degree (four counts), assault in the second degree, menacing in the second degree and criminal possession of a weapon in the second degree.

         Defendant was charged with burglary in the first degree and other criminal offenses after he forced his way into the victim's apartment and hit the victim in the face with a handgun. Following a jury trial, he was convicted of burglary in the first degree (four counts), assault in the second degree, menacing in the second degree and criminal possession of a weapon in the second degree. County Court sentenced defendant as a second violent felony offender to concurrent prison terms of 25 years, followed by five years of postrelease supervision, on each burglary conviction and to lesser concurrent prison terms on the remaining convictions. Defendant appeals.

         Defendant asserts that his convictions are not supported by legally sufficient evidence and are against the weight of the evidence because the testimony of the People's witnesses was so inconsistent, contradictory and illogical as to be incredible as a matter of law. As defendant failed to raise this specific claim in his motion for a trial order of dismissal, his legal sufficiency challenge is unpreserved for appellate review (see People v Werkheiser, 171 A.D.3d 1297, 1298 [2019], lv denied 33 N.Y.3d 1109');">33 N.Y.3d 1109 [2019]; People v Van Alphen, 167 A.D.3d 1076, 1077 [2018], lv denied 32 N.Y.3d 1210');">32 N.Y.3d 1210 [2019]). "However, a weight of the evidence challenge, which bears no preservation requirement, also requires consideration of the adequacy of the evidence as to each element of the crimes" (People v Cruz, 131 A.D.3d 724, 725 [2015] [citations omitted], lv denied 26 N.Y.3d 1087');">26 N.Y.3d 1087 [2015]; accord People v Perillo, 144 A.D.3d 1399, 1400 [2016], lvs denied 29 N.Y.3d 948, 951 [2017]).

         The People's theory, as developed at trial, was that defendant confronted and assaulted the victim because he believed that the victim had stolen drugs or money from him. The testimony established that the victim and his then-fiancÉe (hereinafter the wife) [1] lived in a third-floor apartment in the Town of Hudson Falls, Washington County. Defendant lived in a second-floor apartment in the same building. The victim and the wife testified that, on the day of the incident, they returned to their apartment, accompanied by a friend, and found that the apartment had been ransacked. A few moments after they arrived, defendant entered the apartment, followed by two other men. The wife and the victim testified that defendant knocked and the victim opened the door, while the friend testified that defendant forced or "kicked" the door open. All three witnesses agreed that defendant entered without an invitation to do so and was not authorized to be in the apartment. Shouting that "he wanted his dope and his money," defendant struck the victim in the face with a pistol. The victim fell to the floor, sustaining injuries that included a fractured orbital bone and a facial laceration that required eight stitches.

         The victim, the wife and the friend testified that defendant then held them at gunpoint. He allowed the friend to leave after one of the two men who had accompanied him urged him to do so. Defendant then ordered the victim "to leave and not come back." The victim departed, as did the two men who had accompanied defendant. The wife testified that she and defendant then conversed for a few minutes; she said that defendant was "really upset" about "stuff" that was missing from his apartment. After about five minutes, the wife and defendant realized that police officers were coming up the stairs toward the apartment. The wife testified that she was anxious about the gun's presence in the apartment because she was afraid that it would affect a plea agreement that she had recently reached arising from a drug-related offense. Before police arrived, she asked defendant, "Didn't you have a gun?" He showed her that he had hidden the gun underneath her mattress.

         Police officers who responded to the scene testified that, before they reached the apartment, they encountered two men nearby. An officer detained and searched the men, finding no weapons, while a sergeant and another officer went to the apartment. The sergeant searched defendant and found about $3, 000 on his person. The wife was reluctant to share information with the police in defendant's presence, but after the sergeant separated them, she told him where defendant had hidden the gun. The gun was found and photographed; it proved to be loaded, and it operated properly when it was test-fired. The officer stated that DNA swabs were taken from the gun but were never sent to the crime laboratory for testing.

         A jail administrator testified that defendant made a telephone call from the jail that, like all such calls, was recorded and reviewed. In the recording, which was played for the jury, defendant said that "a lot of money" had been taken from his apartment and he stated, "All I did was defend myself. What you want me... let someone rob me?... I can't just empty my pockets and walk back home. It just don't work like that."

         The victim, the wife and the friend each acknowledged during their direct testimony that they had substantial criminal records and histories of drug use. Defendant asserts that the trial testimony is unworthy of belief because of these factors, as well as inconsistencies and what defendant asserts are illogical assertions in the testimony. If the jury had accepted this argument, a different verdict would not have been unreasonable; thus, we must "weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence" (People v Cole, 162 A.D.3d 1219, 1223 [2018] [internal quotation marks and citations omitted], lv denied 32 N.Y.3d 1002');">32 N.Y.3d 1002 [2018]; accord People v McCoy, 169 A.D.3d 1260, 1261-1262 [2019], lv denied 33 N.Y.3d 1033');">33 N.Y.3d 1033 [2019]). Most of the inconsistencies in the testimony involved relatively minor matters, such as how the victim and the wife spent the day before returning to the apartment or where the two men who accompanied defendant were when police found them, and thus "did not render [the testimony] inherently unbelievable or incredible as a matter of law" (People v Kelsey, 174 A.D.3d 962, 964 [2019] [internal quotation marks and citations omitted], lv denied 34 N.Y.3d 982');">34 N.Y.3d 982 [2019]; see People v Mamadou, 172 A.D.3d 1524, 1525 [2019], lv denied 33 N.Y.3d 1106');">33 N.Y.3d 1106 [2019]). These discrepancies, the witnesses' backgrounds and defendant's claim that certain aspects of the witness accounts were irrational or improbable were "fully explored during cross-examination and, in the final analysis, posed credibility questions for the jury to resolve" (People v Nunes, 168 A.D.3d 1187, 1189 [2019] [internal quotation marks and citations omitted], lv denied 33 N.Y.3d 979');">33 N.Y.3d 979 [2019]).

         Defendant makes a specific argument that his burglary convictions are not supported by the weight of the evidence, claiming that the People failed to prove the element of unlawful entry because the wife testified that defendant was standing on the "top stair" when he struck the victim and, thus, according to defendant, had not yet entered the apartment (see Penal Law § 140.30). However, the jury could reasonably have concluded from the testimony of the victim and the friend that defendant struck the victim as he stepped inside or immediately thereafter. In any case, it was undisputed that the victim was inside the apartment when defendant struck him; thus, defendant necessarily intruded into the space with, at minimum, the arm and hand that were holding the gun (see People v King, 61 N.Y.2d 550, 555 [1984]; People v Prince, 51 A.D.3d 1052, 1053-1054 [2008], lv denied10 N.Y.3d 938');">10 N.Y.3d 938 [2008]). Viewing the evidence in a neutral light ...


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