People v. Blim
| Decision Date | 11 September 1984 |
| Parties | , 469 N.E.2d 513 The PEOPLE of the State of New York, Appellant, v. Andrew D. BLIM, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Stewart E. McDivitt, Dist. Atty. (John L. Callaghan, Watkins Glen, of counsel), for appellant.
L. Richard Stumbar, Ithaca, for respondent.
The order of the Appellate Division, 98 A.D.2d 944, 471 N.Y.S.2d 385, should be reversed and the case remitted to the Appellate Division for consideration of the other alleged errors.
Defendant was convicted at trial of burglary in the third degree. Sergeant Daryl Avery of the Schuyler County Sheriff's Department testified for the prosecution that in the early morning hours of November 25, 1981 he responded to a burglar alarm at the Moose Lodge in Montour Falls. According to Avery, while walking around the building he observed two people running in front of him. Avery drew his revolver and ordered them to halt, which a man later identified as James Lewis did. The other person continued running but turned his head back long enough for Avery to recognize him as defendant, Andrew Blim, whom he had long known. After turning Lewis over to another officer, Avery searched the area but was unable to locate defendant. Defendant was later apprehended at Lewis's apartment.
Avery then entered the lodge through an open door and observed on the floor two crowbars, a two-by-four piece of wood and wedges used to secure the door, and a flashlight. He also noticed that a security chain lock had been knocked off and the door molding was torn out.
James Lewis was called as a witness for the People after entering a guilty plea pursuant to a bargain in which the prosecutor agreed to a maximum sentence of one year and not to prosecute him for 20 other burglaries to which he had admitted. Lewis testified that he entered the lodge with defendant through an unlocked door armed with a flashlight and two crowbars with which to open the safe to take any money in it. Defendant, who had made deliveries to the lodge for a soda company, had told Lewis that he thought the alarms in the building did not work. Upon entering the lodge, however, they noticed a red light flashing so they left the building. They waited for a few minutes and then decided to return to the lodge. Lewis found a metal box on the bar and took $12 from it while defendant went to the room that contained the safe. Lewis then heard a noise at the side door and looked outside and saw a Sheriff's department car in the parking lot. The two men then ran out of the lodge but as they ran away someone shouted at them to halt. Lewis stopped and was arrested by Sergeant Avery but defendant continued to run away. According to Lewis, he flushed the money he had taken from the lodge down a toilet in the county jail.
A barmaid from the lodge testified that there had been $11 in a metal box when she left the premises the night before the break-in but the money was not in the box the next day. She was impeached with a petit larceny conviction obtained against her about the same time as the present incident. The governor of the lodge testified that he had checked the metal box a day or two before the incident and had observed $11 inside it. He checked the box again on the morning after and the money was missing.
Prior to summations, defendant requested that the court charge criminal trespass in the third degree as a lesser included offense but the trial court denied the request. The Appellate Division reversed, ruling that the lesser included offense should have been submitted to the jury.
Criminal trespass in the third degree as then defined by subdivision (a) of section 140.10 of the Penal Law was a lesser included offense of...
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