Opinion
06-17-2016
The PEOPLE of the State of New York, Respondent, v. Jerome INGRAM, 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 (Matthew B. Powers 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 (Matthew B. Powers of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DeJOSEPH, AND CURRAN, JJ.
MEMORANDUM: On appeal from a judgment convicting him following a jury trial of burglary in the second degree (Penal Law § 140.25[2] ), defendant contends that the evidence is legally insufficient to establish his guilt and the verdict is against the weight of the evidence. We reject those contentions. 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 ), we conclude that “there is a valid line of reasoning and permissible inferences to support the jury's finding that defendant committed the crime[ ] of which he was convicted based on the evidence presented at trial” (People v. Scott, 93 A.D.3d 1193, 1194, 940 N.Y.S.2d 411, lv. denied 19 N.Y.3d 967, 950 N.Y.S.2d 119, 973 N.E.2d 217, reconsideration denied 19 N.Y.3d 1001, 951 N.Y.S.2d 477, 975 N.E.2d 923 ; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). 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 further 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 ). Although a different verdict would not have been unreasonable, it cannot be said that the jurors failed to give the evidence the weight it should be accorded (see People v. Canfield, 111 A.D.3d 1396, 1397, 974 N.Y.S.2d 859, lv. denied 22 N.Y.3d 1087, 981 N.Y.S.2d 673, 4 N.E.3d 975 ; People v. Ettleman, 109 A.D.3d 1126, 1128, 971 N.Y.S.2d 621, lv. denied 22 N.Y.3d 1198, 986 N.Y.S.2d 419, 9 N.E.3d 914 ).
We agree with defendant, however, that reversal is required based on Supreme Court's refusal to charge criminal trespass in the second degree (Penal Law § 140.15[1] ) as a lesser included offense of burglary in the second degree. Viewing the evidence in the light most favorable to defendant, as we must in this context (see People v. Randolph, 81 N.Y.2d 868, 869, 597 N.Y.S.2d 630, 613 N.E.2d 536 ), we conclude that there is “a reasonable view of the evidence to support a finding that the defendant committed the lesser offense but not the greater” (People v. Van Norstrand, 85 N.Y.2d 131, 135, 623 N.Y.S.2d 767, 647 N.E.2d 1275 ; see People v. Borges, 90 A.D.3d 1067, 1069, 935 N.Y.S.2d 621 ), i.e., that he did not intend to commit a crime when he entered the victim's apartment without her permission.
In light of our determination, we need not address defendant's remaining contentions, none of which, if meritorious, would result in dismissal of the indictment.
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted on the first count of the indictment.