People v. Harrison

Decision Date26 June 1989
Citation151 A.D.2d 778,543 N.Y.S.2d 108
PartiesThe PEOPLE, etc., Respondent, v. Ronald HARRISON, Appellant.
CourtNew York Supreme Court — Appellate Division

M. Cordrey, Brooklyn, for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn, (Barbara D. Underwood, Peter R. Chatzinoff and Judith Davidow, of counsel), for respondent.

Before BRACKEN, J.P., and RUBIN, HARWOOD and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (O'Brien, J.), entered December 6, 1985, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is affirmed.

Initially, the defendant contends that the hearing court improperly limited defense counsel's examination of the complainant and unnecessarily interjected questions during the Wade hearing. We disagree. The hearing court is vested with authority to regulate the taking of oral testimony and to manage the conduct of the examination of witnesses (see, People v. Yut Wai Tom, 53 N.Y.2d 44, 57, 439 N.Y.S.2d 896, 422 N.E.2d 556; Jones, Evidence [6th ed] §§ 24.1--24.15, at 73-103). Hence, while the court may not prohibit a party's right to inquire into matters directly relevant to the principal issues of the case against him, it may, in the proper exercise of its discretion, preclude unnecessarily repetitive examination (see, Feldsberg v. Nitschke, 49 N.Y.2d 636, 643, 427 N.Y.S.2d 751, 404 N.E.2d 1293). Here, the court, in asking a limited series of questions concerning when the complainant first identified the defendant as the perpetrator of the crime, acted within its discretionary authority in an attempt to clarify unclear and confusing answers elicited by defense counsel which were given by a complainant who suffered two strokes prior to the hearing (see, People v. Yut Wai Tom, supra; People v. Rodriguez, 114 A.D.2d 525, 494 N.Y.S.2d 426). Accordingly, we find no basis for disturbing the hearing court's ruling finding the complainant's identification testimony to be admissible at trial.

Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish that the defendant knowingly entered and remained unlawfully in the complainant's dwelling (see, Penal Law § 140.25[2]. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence. Generally, a person will be deemed to "[e]nter or remain unlawfully" on property when he does so without license or privilege (Penal Law § 140.00[5]; see, People v. Leonard, 62 N.Y.2d 404, 408, 477 N.Y.S.2d 111, 465 N.E.2d 831). Furthermore, entry accomplished through trick or misrepresentation is sufficient to demonstrate this element of burglary (People v. Thompson, 116 A.D.2d 377, 380-381, 501 N.Y.S.2d 381; see, People v. Dupree, 122 A.D.2d 852, 505 N.Y.S.2d 719). At bar, the defendant gained access to the complainant's apartment through his false representation that he was responding to an apartment-for-rent sign posted on the building's exterior. Such deception, in conjunction with the complainant's unequivocal testimony that the entry was otherwise uninvited, established that the defendant entered without license or privilege.

Finally, we reject the defendant's claim that the trial court was required to submit criminal possession of stolen property in the fifth degree to the jury as a lesser included offense of the count...

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11 cases
  • Caudill v. Com., 2000-SC-0296-MR.
    • United States
    • Supreme Court of Kentucky
    • June 12, 2003
    ...761, 761-62 (N.Y.App.Div.1998); People v. Johnson, 190 A.D.2d 503, 593 N.Y.S.2d 35, 36 (N.Y.App.Div.1993); People v. Harrison, 151 A.D.2d 778, 543 N.Y.S.2d 108, 110 (N.Y.App.Div.1989). We find that reasoning to be sound and are satisfied that no reasonable juror would conclude that "entry b......
  • Admin. for Children's Servs. v. Benellie R. (In re Zaire D.)
    • United States
    • New York Supreme Court — Appellate Division
    • December 20, 2011
    ...643, 427 N.Y.S.2d 751, 404 N.E.2d 1293; see Bernstein v. Bodean, 53 N.Y.2d at 529, 443 N.Y.S.2d 49, 426 N.E.2d 741; People v. Harrison, 151 A.D.2d 778, 779, 543 N.Y.S.2d 108). While the mother is correct that the Family Court erred in admitting into evidence the Domestic Incident Report con......
  • People v. Wright
    • United States
    • New York Supreme Court — Appellate Division
    • November 20, 1995
    ...v. Moulton, 43 N.Y.2d 944, 403 N.Y.S.2d 892, 374 N.E.2d 1243; People v. Dominguez, 210 A.D.2d 249, 620 N.Y.S.2d 257; People v. Harrison, 151 A.D.2d 778, 543 N.Y.S.2d 108). Additionally, the hearing court correctly determined that the showup identification procedure was not unnecessarily sug......
  • People v. Johnson
    • United States
    • New York Supreme Court — Appellate Division
    • February 2, 1993
    ...140.30). When entry is accomplished by means of deception, the trespassory element of the crime is met (e.g., People v. Harrison, 151 A.D.2d 778, 779, 543 N.Y.S.2d 108, lv. denied 74 N.Y.2d 848, 546 N.Y.S.2d 1012, 546 N.E.2d 195; People v. Thompson, 116 A.D.2d 377, 380-381, 501 N.Y.S.2d 381......
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