New York Appellate Division Reports

PEOPLE v. BALDWIN, 16477 [3d Dept 12-28-2006] 2006 NY Slip
v. MICHAEL R. BALDWIN, Appellant. No. 16477. Appellate
Division of the Supreme Court of New York, Third
Department. Decided and Entered: December 28, 2006.

Appeal from a judgment of the County Court of Chenango
County (Sullivan, J.), rendered June 13, 2005, upon a
verdict convicting defendant of the crimes of burglary in
the second degree (two counts), petit larceny (two counts)
and criminal possession of stolen property in the fifth

Rosemarie Richards, Gilbertsville, for appellant.

Joseph A. McBride, District Attorney, Norwich (Michael J.
Genute of counsel), for respondent.




Following an investigation into burglaries of three homes
in the Chenango County area owned by Edward O’Reilly and
Mary Lou O’Reilly, Alba Martinez and Toby Franklin,
defendant, Shane Manwarren and Nathan Sherwood were
arrested. Defendant waived indictment by a grand jury and
was charged in a superior court information with numerous
crimes relating to all three burglaries[fn1]. A jury trial
was held at which, among others, the victims and Manwarren
testified regarding, among other things, defendant’s
involvement in the O’Reilly and Franklin burglaries. At the
close of the People’s proof, the prosecutor agreed to the
dismissal of all counts stemming from the Martinez burglary.
Thereafter, defendant was convicted of two counts of
burglary in the second degree, two counts of petit larceny
and criminal possession of stolen property in the fifth
degree. Defendant was sentenced to two concurrent prison
terms of 4Ë?; years on the burglary counts, with time served
on the misdemeanor counts and an order to pay $1,800 in

Initially, we are unpersuaded that defendant’s convictions
are against the weight of the evidence. Upon consideration
of “such a challenge, we view the evidence in a neutral
light and, if a conclusion contrary to guilt would not be
unreasonable, we then weigh the relative probative force of
any conflicting testimony and the relative strength of
conflicting inferences that may be drawn therefrom” (People
v Trumbach, 31 AD3d 1054, 1055 [2006]; see People v
Bleakley, 69 NY2d 490, 495 [1987]). Significantly, in
“[v]iewing the evidence in a neutral light,” this Court
gives “due deference to the jury’s credibility
determinations” (People v Durant, 6 AD3d 938, 941 [2004], lv
denied 3 NY3d 639 [2004]).

Here, the testimony of Manwarren, supplemented and
corroborated by other nonaccomplice evidence, established
defendant’s participation in the crimes. Specifically, with
respect to the burglary of the Franklin home, Manwarren
stated that he acted as a “lookout,” remaining on the
street with defendant’s white and tan van, while defendant
and Sherwood broke into the home and stole jewelry, a
camcorder, walkie-talkies and a backpack. He also testified
that they passed his wife’s uncle working on the side of
the road while they were driving home from the burglary. As
an accomplice, Manwarren’s testimony had to be corroborated
with “evidence tending to connect the defendant with the
commission of [the] offense” (CPL 60.22 [1]), which
“‘requires only enough nonaccomplice evidence to assure
that [Manwarren] offered credible probative evidence'”
(People v Cross, 25 AD3d 1020, 1022 [2006], quoting People
v Breland, 83 NY2d 286, 293 [1994]). We find Manwarren’s
proof was sufficiently corroborated by, among other things,
the testimony of his wife’s uncle, who confirmed seeing
three men in a vehicle resembling defendant’s distinctive
van near the Franklin residence at the time of the
burglary, all of whom turned their faces away from him as
they drove by (see People v Thomas, 33 AD3d 1053, 1055
[2006]; People v Cancer, 16 AD3d 835, 837 [2005], lv denied
5 NY3d 826 [2005]).

As for the convictions stemming from the O’Reilly burglary,
Mary Lou O’Reilly testified that, upon her return home from
work, she observed that the screen had been cut out of her
back door and a window had been broken. Upon entry with the
police, she discovered that her son’s laptop computer and
other items were missing. Although Manwarren was not a
participant in that burglary, he testified that he was
present when defendant came to a friend’s house with a
laptop and admitted that he had taken it from the O’Reilly
home after breaking and entering through a back window.
Additionally, Jason Sigler, a friend of defendant who was
acquainted with the O’Reilly family, testified to
defendant’s possession of the laptop which had the victim’s
husband’s picture on the screen — and asked if
Sigler knew anyone who wanted to buy it. Manwarren’s wife
testified that she asked defendant if he had broken into the
O’Reilly home, at which point defendant asked if she knew
anyone who wanted to buy a laptop computer. Given this
evidence and according appropriate deference to the jury’s
credibility determinations (see People v Durant, supra at
941), we conclude that the jury’s verdict was not against
the weight of the evidence.

Next, we are unpersuaded that defendant was denied the
effective assistance of counsel. He claims that defense
counsel failed to request pretrial discovery that would
have revealed the existence of fingerprint reports showing
that prints found at the burglarized homes were
inconclusive and could not be used to identify defendant as
a participant in the crimes. However, while it is true that
defense counsel did not make the discovery request, viewing
his assistance in its totality, we conclude that defense
counsel rendered meaningful representation (see People v
Washington, 21 AD3d 648, 650-651 [2005], lv denied 6 NY3d
839 [2006]; People v Williams, 305 AD2d 804, 808 [2003]).
The record demonstrates that defense counsel was provided
with fingerprint information at trial and had the
opportunity to utilize it on cross-examination. Further,
defendant’s allegation that defense counsel did not
“request specific relief” after learning of the reports is
belied by the record, which reveals that defense counsel
moved for a mistrial based on the People’s failure to
produce the evidence. Significantly, a review of the record
indicates that defense counsel made numerous objections,
effectively cross-examined witnesses, made appropriate
motions, secured an interested witness charge and succeeded
in having certain counts dismissed or reduced (see People v
Green, 31 AD3d 1048, 1051 [2006]; People v Washington,
supra at 650-651 [2005]; People v Williams, supra at 808).
Accordingly, we find no merit to defendant’s claim of
ineffective representation.

Turning to defendant’s argument that County Court erred in
refusing to give a missing witness charge with respect to
two witnesses, we find no error. Although defendant claims
that he was entitled to such a charge with respect to the
individual who processed the crime scenes and took
fingerprints, defendant failed to show that this person
would have given noncumulative testimony favorable to the
People (see People v Savinon, 100 NY2d 192, 197 [2003]). As
to defendant’s request for a missing witness charge in
reference to Sherwood, inasmuch as the record substantiates
that he refused to testify despite the fact that he was
under subpoena and warned by County Court that he could be
held in contempt, the request for a missing witness charge
was properly denied (see People v Washington, supra at

We note two other issues raised by defendant that require
some discussion. County Court did not err in refusing to
submit the lesser included offense of criminal trespass to
the jury instead of burglary in the second degree, inasmuch
as there was no proof “suggesting a noncriminal purpose for
entry” into the O’Reilly home by defendant (People v
Martinez, 9 AD3d 679, 681 [2004], lv denied 3 NY3d 709
[2004]; see Penal Law § 140.15). Additionally, even
if the People erred in failing to timely provide certain
Rosario material to defendant, i.e., a copy of one
witness’s prior statement to the police, we note that this
document was provided during the witness’s direct
examination, and the court granted a recess to allow
counsel to review the statement before cross-examination.
Thus, no prejudice accrued to defendant (see People v
Nelson, 1 AD3d 796, 797 [2003], lv denied 1 NY3d 631

We have examined defendant’s remaining contentions,
including his claim of prosecutorial misconduct, and
conclude that they are unpersuasive.

[fn1] Manwarren and Sherwood ultimately pleaded guilty to
criminal charges stemming from the burglary of Franklin’s

Peters, Carpinello, Rose and Kane, JJ., concur.

ORDERED that the judgment is affirmed.