People v. Jimenez

• Decision Date: 13 December 2012
• Citation: 956 N.Y.S.2d 29,101 A.D.3d 513,2012 N.Y. Slip Op. 08656
• Parties: The PEOPLE of the State of New York, Respondent, v. James JIMENEZ, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

101 A.D.3d 513
956 N.Y.S.2d 29
2012 N.Y. Slip Op. 08656

The PEOPLE of the State of New York, Respondent,
v.
James JIMENEZ, Defendant–Appellant.

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

Dec. 13, 2012.

Robert S. Dean, Center for Appellate Litigation, New York (Bruce D. Austern of counsel), for appellant.

[956 N.Y.S.2d 30]

Cyrus R. Vance, Jr., District Attorney, New York (Timothy C. Stone of counsel), for respondent.

TOM, J.P., SWEENY, MOSKOWITZ, RENWICK, CLARK, JJ.

[101 A.D.3d 513]Judgment, Supreme Court, New York County (Roger S. Hayes, J. at first jury trial; Jill Konviser, J. at second jury trial and sentencing), rendered September 7, 2010, convicting defendant of burglary in the second degree and two counts of criminal trespass in the second degree, and sentencing him to an aggregate term of four years, unanimously affirmed.

At the first trial, the court correctly declined to “accept” a purported verdict of guilty on two counts of criminal trespass. The court had submitted three counts of second-degree burglary with three corresponding counts of the lesser included offense of second-degree criminal trespass. As to one of these pairs of counts, the jury reached a proper verdict, acquitting defendant of burglary and convicting him of trespass, and the court accepted that verdict. The jury announced that it had not reached unanimous verdicts as to the two other burglary counts. However, on the verdict sheet the guilty boxes for the two corresponding trespass counts contained check marks. The court rejected defendant's request that it take the verdict according to the sheet (which would have amounted to acquittals of the greater burglary charges).

The court did not err in its handling of the situation. In the first place, “[m]arks on verdict sheets are not verdicts” (Matter of Suarez v. Byrne, 10 N.Y.3d 523, 528 n. 3, 860 N.Y.S.2d 439, 890 N.E.2d 201 [2008] ). Therefore, with respect to the counts at issue there was nothing before the court but a statement that the jury had not reached a verdict.

In any event, trespass convictions not preceded by corresponding burglary acquittals would have been defective ( seeCPL 310.50) because they would have violated the court's instruction to consider the lesser offenses only if the jury found the defendant not guilty of the corresponding greater offenses ( see [101 A.D.3d 514]People v. Boettcher, 69 N.Y.2d 174, 182–183, 513 N.Y.S.2d 83, 505 N.E.2d 594 [1987] ). Furthermore, guilty verdicts...