Opinion
2014-06-13
The PEOPLE of the State of New York, Respondent, v. Steven B. ROSEBOROUGH, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Jane I. Yoon of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Erin Tubbs of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Jane I. Yoon of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Erin Tubbs of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., FAHEY, CARNI, VALENTINO AND WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the third degree (Penal Law § 140.20). Contrary to defendant's contention, we conclude under the circumstances of this case that County Court (McCarthy, J.), properly denied that part of defendant's motion seeking dismissal of the indictment pursuant to CPL 30.30 ( see People v. Freeman, 38 A.D.3d 1253, 1253, 833 N.Y.S.2d 777,lv. denied9 N.Y.3d 875, 842 N.Y.S.2d 787, 874 N.E.2d 754,reconsideration denied10 N.Y.3d 811, 857 N.Y.S.2d 44, 886 N.E.2d 809;People v. Smith, 1 A.D.3d 955, 956, 767 N.Y.S.2d 714,lv. denied 1 N.Y.3d 634, 777 N.Y.S.2d 32, 808 N.E.2d 1291). Viewing the evidence in the light most favorable to defendant, as we must ( see People v. Martin, 59 N.Y.2d 704, 705, 463 N.Y.S.2d 419, 450 N.E.2d 225), we further conclude that County Court (DeMarco, J.), properly denied defendant's request to charge criminal trespass in the third degree as a lesser included offense (Penal Law § 140.10). Criminal trespass in the third degree is a lesser included offense of burglary in the third degree inasmuch as “it is impossible to commit the greater offense without at the same time committing the lesser” ( People v. Blim, 63 N.Y.2d 718, 720, 480 N.Y.S.2d 192, 469 N.E.2d 513;see People v. Collier, 258 A.D.2d 891, 892, 685 N.Y.S.2d 521). Nevertheless, the court properly denied defendant's request because, “[i]f defendant's version of the events were believed, defendant would not be guilty of any crime” ( People v. Sheldon, 262 A.D.2d 1060, 1061, 692 N.Y.S.2d 878,lv. denied93 N.Y.2d 1045, 697 N.Y.S.2d 878, 720 N.E.2d 98). Thus, “under no reasonable view of the evidence could the jury have found that defendant committed the lesser offense but not the greater” ( Blim, 63 N.Y.2d at 720, 480 N.Y.S.2d 192, 469 N.E.2d 513). Finally, we conclude that the court did not abuse its discretion in refusing to permit surrebuttal testimony from defendant's wife, part of which concerned a collateral matter ( see generally People v. Petty, 7 N.Y.3d 277, 287, 819 N.Y.S.2d 684, 852 N.E.2d 1155), and the other part of which constituted inadmissible hearsay ( see generally People v. Burwell, 159 A.D.2d 407, 408–409, 553 N.Y.S.2d 105,lv. denied76 N.Y.2d 785, 559 N.Y.S.2d 990, 559 N.E.2d 684).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.