Opinion
10-07-2016
The PEOPLE of the State of New York, Respondent, v. Nicholas E. CARDUCCI, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy Of Counsel), for Defendant–Appellant. Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy Of Counsel), for Defendant–Appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the second degree (Penal Law § 140.25[2] ). We reject defendant's contention that the People violated County Court's pretrial ruling that a detective who investigated the burglarized house could not present opinion testimony because he was not an expert in tool mark identification. The People adhered to the ruling inasmuch as the detective did not render an opinion whether the tool marks on the frame of the door leading from the mud room into the house matched the burglar tools found in defendant's vehicle; he testified as a lay witness about his observations and actions, which was proper (see generally People v. Hoppe, 47 A.D.2d 571, 572, 362 N.Y.S.2d 611 ). In addition, the court did not err in admitting the other evidence of the tool marks, including photographs thereof (see People v. Marini, 114 A.D.2d 686, 687–688, 494 N.Y.S.2d 560, lv. denied 67 N.Y.2d 653, 499 N.Y.S.2d 1050, 490 N.E.2d 566 ). Defendant did not preserve his further contention that he was prejudiced when the prosecutor elicited significant testimony from the detective regarding his scientific background and education despite the court's ruling that the detective was not permitted to testify as an expert (see CPL 470.05[2] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ; People v. Valdez, 53 A.D.3d 172, 173–176, 861 N.Y.S.2d 288, lv. denied 11 N.Y.3d 836, 868 N.Y.S.2d 610, 897 N.E.2d 1094 ).
Defendant failed to preserve for our review his contention that the evidence is legally insufficient to establish that the attached mud room and the garage of the house in which he was discovered by the homeowner were part of the “dwelling” for purposes of Penal Law §§ 140.00(3) and 140.25(2) (see People v. Rivera, 301 A.D.2d 787, 788, 754 N.Y.S.2d 74, lv. denied 99 N.Y.2d 631, 760 N.Y.S.2d 113, 790 N.E.2d 287 ; People v. Vasquez, 277 A.D.2d 1023, 1023, 715 N.Y.S.2d 675, lv. denied 96 N.Y.2d 788, 725 N.Y.S.2d 653, 749 N.E.2d 222 ). In any event, that contention is without merit (see People v. Jackson, 126 A.D.3d 1508, 1510, 8 N.Y.S.3d 505 ; Rivera, 301 A.D.2d at 788–789, 754 N.Y.S.2d 74 ; People v. Carmel, 298 A.D.2d 928, 928–929, 748 N.Y.S.2d 89, lv. denied 99 N.Y.2d 556, 754 N.Y.S.2d 208, 784 N.E.2d 81 ). We reject defendant's contention that the evidence is legally insufficient to establish that he intended to commit a crime when he unlawfully entered the house (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). The jury was entitled to infer beyond a reasonable doubt that defendant intended to commit a crime inside the building based on the evidence of the fresh tool marks on the frame of the door leading from the mud room into the house, defendant's possession of burglar tools, his unexplained presence on the premises, and his actions and statements when confronted by the homeowner, the witnesses from whom the homeowner sought help, and the police (see People v. James, 114 A.D.3d 1202, 1205, 980 N.Y.S.2d 645, lv. denied 22 N.Y.3d 1199, 986 N.Y.S.2d 420, 9 N.E.3d 915 ; People v. Freeman, 103 A.D.3d 1177, 1177–1178, 958 N.Y.S.2d 853, lv. denied 21 N.Y.3d 912, 966 N.Y.S.2d 363, 988 N.E.2d 892 ; People v. Vivenzio, 103 A.D.2d 1044, 1044–1045, 478 N.Y.S.2d 438 ). Contrary to defendant's further contention, viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Contrary to defendant's contention, we conclude that he was not deprived of a fair trial by prosecutorial misconduct during the opening statement (see People v. Castro, 281 A.D.2d 935, 935–936, 722 N.Y.S.2d 854, lv. denied 96 N.Y.2d 860, 730 N.Y.S.2d 34, 754 N.E.2d 1117 ), and that the alleged instances of prosecutorial misconduct on summation were either “a fair response to defense counsel's summation or fair comment on the evidence” (People v. Walker, 117 A.D.3d 1441, 1442, 986 N.Y.S.2d 284, lv. denied 23 N.Y.3d 1044, 993 N.Y.S.2d 258, 17 N.E.3d 513 [internal quotation marks omitted]; see People v. Hassem, 100 A.D.3d 1460, 1461, 953 N.Y.S.2d 444, lv. denied 20 N.Y.3d 1099, 965 N.Y.S.2d 795, 988 N.E.2d 533 ).
We further conclude that the court properly declined to give defendant's requested supplemental jury charge inasmuch as an adverse inference instruction was not warranted in this case (see generally People v. Durant, 26 N.Y.3d 341, 347, 23 N.Y.S.3d 98, 44 N.E.3d 173 ; People v. Matos, 138 A.D.3d 426, 427, 27 N.Y.S.3d 571, lv denied 27 N.Y.3d 1135, 39 N.Y.S.3d 117, 61 N.E.3d 516 ). In addition, defendant failed to preserve for our review his contention that the court's instructions on the burglary count were erroneous inasmuch as he did not request that the court omit the “or remains” language from its proposed charge and failed to object to the charge as given on that ground (see People v. Smith, 140 A.D.3d 1396, 1398, 33 N.Y.S.3d 580 ; People v. Bonner, 256 A.D.2d 1219, 1220, 684 N.Y.S.2d 364, lv. denied 93 N.Y.2d 871, 689 N.Y.S.2d 433, 711 N.E.2d 647 ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ; Smith, 140 A.D.3d at 1398, 33 N.Y.S.3d 580). Contrary to defendant's further contention, this case does not involve the possibility that the jury rendered a nonunanimous verdict, i.e., that defendant was convicted on different theories of the burglary as presented in the court's charge, inasmuch as the evidence adduced here could not have established that defendant entered the house lawfully and formed the intent to commit a crime while remaining therein (cf. People v. Graves, 136 A.D.3d 1347, 1348, 25 N.Y.S.3d 477, lv. denied 27 N.Y.3d 1069, 38 N.Y.S.3d 840, 60 N.E.3d 1206 ).
Finally, the sentence is not unduly harsh or severe. The certificate of conviction, however, incorrectly reflects that defendant was sentenced as a second felony offender, and it must therefore be amended to reflect that he was sentenced as a second violent felony offender (see People v. Dombrowski, 94 A.D.3d 1416, 1417, 942 N.Y.S.2d 830, lv. denied 19 N.Y.3d 959, 950 N.Y.S.2d 111, 973 N.E.2d 209 ; People v. Afrika, 79 A.D.3d 1678, 1680, 914 N.Y.S.2d 542, lv. denied 17 N.Y.3d 791, 929 N.Y.S.2d 99, 952 N.E.2d 1094 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.