Opinion
05-13-2015
The PEOPLE, etc., respondent, v. Michael AYERS, appellant.
Lynn W.L. Fahey, New York, N.Y. (Tammy Linn of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, and Joyce Adolfsen of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Tammy Linn of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, and Joyce Adolfsen of counsel), for respondent.
Opinion Appeal by the defendant from a judgment of the Supreme Court, Kings County (Guzman, J.), rendered June 6, 2013, convicting him of burglary in the second degree and petit larceny, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant contends that the People failed to present legally sufficient evidence of his guilt of burglary in the second degree. Contrary to his contention, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), the evidence was legally sufficient to establish that the apartment unlawfully entered by the defendant was a dwelling within the meaning of Penal Law § 140.00(3) at the time of the burglary (see Penal Law § 140.25 [2 ]; People v. McCray, 23 N.Y.3d 621, 630, 992 N.Y.S.2d 475, 16 N.E.3d 533 ; People v. Barney, 99 N.Y.2d 367, 370–371, 756 N.Y.S.2d 132, 786 N.E.2d 31 ; People v. Henry, 64 A.D.3d 804, 805, 881 N.Y.S.2d 701 ; People v. Abarrategui, 306 A.D.2d 20, 21, 761 N.Y.S.2d 632 ). Moreover, upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt as to the count of burglary in the second degree was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 644–645, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
Furthermore, because there was no reasonable view of the evidence that the apartment at issue was not a dwelling within the meaning of the Penal Law, the Supreme Court properly refused to charge the lesser included offense of burglary in the third degree (see CPL 300.50[1] ; People v. Barney, 99 N.Y.2d at 371–373, 756 N.Y.S.2d 132, 786 N.E.2d 31 ; People v. Sheirod, 124 A.D.2d 14, 510 N.Y.S.2d 945 ).
RIVERA, J.P., DICKERSON, COHEN and BARROS, JJ., concur.