People v. Downey

• Decision Date: 02 February 2018
• Docket Number: 1481,KA 16–01438
• Parties: The PEOPLE of the State of New York, Respondent, v. Kevin M. DOWNEY, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

158 A.D.3d 1198
71 N.Y.S.3d 235

The PEOPLE of the State of New York, Respondent,
v.
Kevin M. DOWNEY, Defendant–Appellant.

1481
KA 16–01438

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: February 2, 2018

THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF COUNSEL), FOR DEFENDANT–APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., SMITH, CARNI, TROUTMAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

Memorandum:

158 A.D.3d 1198

Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the first degree ( Penal Law § 140.30 [2 ] ). The charges arose from allegations that he entered a home in which his sister resided, then entered another resident's bedroom and assaulted that resident. Contrary to defendant's contention, 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 support the conviction (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Furthermore, viewing

158 A.D.3d 1199

the evidence in light of the elements of the crime 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 conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).

Defendant contends that reversal is required because the jury convicted him based on a theory that differs from the one set forth in the indictment as limited by the bill of particulars. Although defendant did not raise that contention in Supreme Court and thus did not preserve it for our review, we conclude that "preservation is not required" ( People v. Greaves, 1 A.D.3d 979, 980, 767 N.Y.S.2d 530 [4th Dept. 2003] ), inasmuch as "defendant has a fundamental and nonwaivable right to be tried only on the crimes charged" in the indictment as limited by the bill of particulars ( People v. Duell, 124 A.D.3d 1225, 1226, 999 N.Y.S.2d 288 [4th Dept. 2015], lv denied 26 N.Y.3d 967, 18 N.Y.S.3d 603, 40 N.E.3d 581 [2015] [internal quotation marks omitted]; see People v. Sanford, 148 A.D.3d 1580, 1582, 51 N.Y.S.3d 728 [4th Dept. 2017], lv denied 29 N.Y.3d 1133, 64 N.Y.S.3d 683, 86 N.E.3d 575 [2017] ). Nevertheless, defendant's contention is without merit. Defendant, in essence, contends that, because of variances between the evidence at trial and the allegations in the indictment as limited by the bill of particulars, the indictment failed to fulfill two of the primary functions of an indictment, i.e., to provide "defendant with fair notice of the accusations made against him, so that he will be able to prepare a defense," and "to provide some means of ensuring that the crime for which the defendant is brought to trial is in fact one for which he was indicted by the Grand Jury, rather than some alternative seized upon by the prosecution in light of subsequently discovered evidence" ( People v. Iannone, 45 N.Y.2d 589, 594, 412 N.Y.S.2d 110, 384 N.E.2d 656 [1978] ; see People v. Rivera, 84 N.Y.2d 766, 769, 622 N.Y.S.2d 671, 646...