Opinion
May 7, 1992
Appeal from the Supreme Court, Bronx County (Lawrence Tonetti, J.).
Viewing the facts in a light most favorable to the People and giving them the benefit of every reasonable inference to be drawn therefrom, we have no difficulty in accepting as reasonable the inference that defendant, acting in concert with his codefendants, who unsuccessfully challenged the sufficiency of the evidence on their appeals (People v. Ortiz, 173 A.D.2d 189, lv denied 78 N.Y.2d 1129; People v. Sanchez, 177 A.D.2d 267, lv denied 79 N.Y.2d 863), caused the death of the victim (Penal Law § 125.25; People v. Benzinger, 36 N.Y.2d 29; People v. Wood, 8 N.Y.2d 48, 51-53). Defendant argues that the victim might have fallen through the window to avoid being shot by a "non-participant" taking defensive action, but the claim rests on speculation.
Nor is the proof of defendant's guilt insufficient because the court charged that in order to establish felony murder the evidence had to show that defendant committed the crime of burglary in the first degree. The evidence at trial shows that the entire building was a dwelling; unlawful entry into part of a building that is a dwelling is the burglary of that "dwelling" (People v. Torres, 162 A.D.2d 385, lv denied 76 N.Y.2d 897), and Penal Law § 140.00 (2) provides, inter alia, that "[w]here a building consists of two or more units separately secured or occupied, each unit shall be deemed both a separate building in itself and a part of the main building." Accordingly any question whether the particular apartment in which the attack occurred was a separate dwelling was not a basis for an acquittal (see also, People v. Lewoc, 101 A.D.2d 927).
Contrary to defendant's argument, the court's charge was balanced. "Although the court engaged in some limited discussion of the evidence, it did so to explain the application of the law to the facts, and was not required to refer to all the evidence or explain all the inconsistencies therein. (People v. Thomas, 166 A.D.2d 624.)" (People v. Weaver, 171 A.D.2d 514, 514-515, lv denied 78 N.Y.2d 927.) Moreover, the court made it plain that defendant and his codefendants wanted the jury to reject the testimony of the main prosecution witness on the various grounds advanced by their counsel.
We have considered defendant's remaining claims, including those that he incorporates by reference to the appeals of his codefendants, and find them to be without merit.
Concur — Murphy, P.J., Milonas, Ellerin, Asch and Rubin, JJ.