People v. Arroyo
| Decision Date | 24 November 1986 |
| Parties | The PEOPLE, etc., Respondent, v. William ARROYO, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Philip L. Weinstein, New York City (Abraham Clott, of counsel), for appellant.
John J. Santucci, Dist. Atty., Kew Gardens (Michael Cohen, of counsel), for respondent.
Before LAZER, J.P., and THOMPSON, WEINSTEIN and EIBER, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Farlo, J.), rendered January 16, 1984, convicting him of burglary in the second degree, sexual abuse in the first degree, and endangering the welfare of a child, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Despite the fact that burglary in the second degree may be committed by either entering or remaining unlawfully on the premises (Penal Law § 140.25), the instant indictment charged that the defendant had "entered and remained unlawfully" (emphasis supplied). The trial court did not err, however, in instructing the jury that they could render a verdict of guilty upon either finding (see, People v. Charles, 61 N.Y.2d 321, 473 N.Y.S.2d 941, 462 N.E.2d 118; People v. Rooney, 57 N.Y.2d 822, 455 N.Y.S.2d 595, 441 N.E.2d 1113). Nor did it abuse its discretion (see, People v. Reising, 106 A.D.2d 522, 483 N.Y.S.2d 58) in refusing to adjourn the imposition of sentence, since the information in the pre-sentence report which the defendant sought to controvert had no effect on the sentencing decision. The sentence imposed does not warrant modification on appeal (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
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