Opinion
1060 KA 18-01067
02-11-2021
The PEOPLE of the State of New York, Respondent, v. Eric A. LYNCH, Defendant-Appellant.
FRANK MELLACE, II, ROME, FOR DEFENDANT-APPELLANT. JEFFREY S. CARPENTER, DISTRICT ATTORNEY, HERKIMER (MICHAEL T. JOHNSON OF COUNSEL), FOR RESPONDENT.
FRANK MELLACE, II, ROME, FOR DEFENDANT-APPELLANT.
JEFFREY S. CARPENTER, DISTRICT ATTORNEY, HERKIMER (MICHAEL T. JOHNSON OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, NEMOYER, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, burglary in the first degree ( Penal Law § 140.30 [1] ) and attempted burglary in the first degree ( §§ 110.00, 140.30 [1] ). Defendant's contention that County Court did not properly instruct the jury on the predicate crime of menacing as alleged in the indictment with respect to the crimes of burglary in the first degree and attempted burglary in the first degree is not preserved for our review (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. Couser , 12 A.D.3d 1040, 1042, 785 N.Y.S.2d 212 [4th Dept. 2004], lv denied 4 N.Y.3d 762, 792 N.Y.S.2d 6, 825 N.E.2d 138 [2005] ). To the extent that defendant contends that the jury instruction allowed the jury to convict him on an uncharged theory of burglary, we conclude that defendant failed to preserve his challenge for our review (see People v. Hursh , 191 A.D.3d 1453, 1453, 138 N.Y.S.3d 437 [4th Dept. 2021] ; see generally People v. Allen , 24 N.Y.3d 441, 449-450, 999 N.Y.S.2d 350, 24 N.E.3d 586 [2014] ), 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] ).
We reject defendant's contention that the court erred in denying his request to charge criminal trespass in the second degree as a lesser included offense of burglary in the first degree. There is no " ‘reasonable view of the evidence to support a finding that defendant committed the lesser offense but not the greater’ " ( People v. Ingram , 140 A.D.3d 1777, 1778, 33 N.Y.S.3d 657 [4th Dept. 2016] ; see People v. Harris , 50 A.D.3d 1608, 1608, 857 N.Y.S.2d 840 [4th Dept. 2008], lv denied 10 N.Y.3d 959, 863 N.Y.S.2d 143, 893 N.E.2d 449 [2008] ), i.e., "that [defendant] entered the [dwelling] unlawfully but for an innocent purpose and developed the intent to commit a crime therein after his entry" ( People v. Mercado , 294 A.D.2d 805, 805, 742 N.Y.S.2d 744 [4th Dept. 2002], lv denied 98 N.Y.2d 731, 749 N.Y.S.2d 481, 779 N.E.2d 192 [2002] ).
Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction with respect to burglary in the first degree and attempted burglary in the first degree inasmuch as defendant's motion for a trial order of dismissal was not specifically directed at the alleged deficiency in the People's proof (see generally People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ; People v. Bibbes , 98 A.D.3d 1267, 1267-1268, 951 N.Y.S.2d 607 [4th Dept. 2012], amended on rearg 100 A.D.3d 1473, 954 N.Y.S.2d 923 [4th Dept. 2012], lv denied 20 N.Y.3d 931, 957 N.Y.S.2d 690, 981 N.E.2d 287 [2012] ), i.e., that the People failed to establish that defendant unlawfully entered the dwellings with the intent to commit the crime of menacing therein. In any event, viewing the evidence in the light most favorable to the People (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we conclude that the evidence is legally sufficient to establish that defendant had the requisite intent (see generally People v. Madore , 145 A.D.3d 1440, 1440, 46 N.Y.S.3d 300 [4th Dept. 2016], lv denied 29 N.Y.3d 1034, 62 N.Y.S.3d 303, 84 N.E.3d 975 [2017] ). Furthermore, viewing the evidence in light of the elements of the crimes of burglary in the first degree and attempted burglary in the first degree 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 [2007] ), we reject defendant's contention that the verdict on those counts is against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). We have considered defendant's remaining contentions and conclude that none warrants modification or reversal of the judgment. Finally, the sentence is not unduly harsh or severe.