People v. Green

• Decision Date: 23 April 2013
• Citation: 105 A.D.3d 611,963 N.Y.S.2d 257,2013 N.Y. Slip Op. 02697
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael GREEN, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

105 A.D.3d 611
963 N.Y.S.2d 257
2013 N.Y. Slip Op. 02697

The PEOPLE of the State of New York, Respondent,
v.
Michael GREEN, Defendant–Appellant.

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

April 23, 2013.

[963 N.Y.S.2d 258]

Steven Banks, The Legal Aid Society, New York (Frances A. Gallagher of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), for respondent.

GONZALEZ, P.J., MAZZARELLI, MOSKOWITZ, RENWICK, MANZANET–DANIELS, JJ.

[105 A.D.3d 611]Judgment, Supreme Court, New York County (Lewis Bart Stone, J.), rendered October 19, 2009, convicting defendant, after a jury trial, of burglary in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 20 years, unanimously affirmed.

Defendant was not prejudiced by the fact that the indictment charged him with both entering and remaining unlawfully, and by the court and prosecutor's references to these mutually exclusive theories of burglary ( see People v. Gaines, 74 N.Y.2d 358, 547 N.Y.S.2d 620, 546 N.E.2d 913 [1989] ) at early stages of the trial. The court's final instructions conveyed the correct elements of second-degree burglary under a theory of unlawful entry only. Furthermore, it was clear from [105 A.D.3d 612]the evidence that the People were proceeding under a theory of unlawful entry, not a theory of unlawful remaining, under which “a defendant must have entered legally, but remain for the purpose of committing a crime after authorization to be on the premises terminates” ( id. at 363, 547 N.Y.S.2d 620, 546 N.E.2d 913). Given the evidence and the court's instructions, there is no reasonable possibility that the jury convicted defendant under an improper theory that he entered the victims' apartment unlawfully, but without criminal intent, and then formed such an intent while in the apartment ( see e.g. People v. Agrelo–Travieso, 257 A.D.2d 514, 515, 685 N.Y.S.2d 12 [1st Dept. 1999],lv. denied93 N.Y.2d 870, 689 N.Y.S.2d 432, 711 N.E.2d 646 [1999] ).

[963 N.Y.S.2d 259]

Defendant's argument that the submission of two theories of second-degree burglary to the grand jury impaired the integrity of the proceeding is unpreserved and we decline to review it in the interest of justice. Defendant's generalized reference to grand jury instructions in his pretrial omnibus motion was insufficient to preserve this claim ( see People v. Brown, 81 N.Y.2d 798, 595 N.Y.S.2d 370, 611 N.E.2d 271 [1993] )....