People v. Lewoc
| Decision Date | 17 May 1984 |
| Citation | 101 A.D.2d 927,475 N.Y.S.2d 933 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Paul LEWOC, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Marshall Nadan, Kingston, for appellant.
Michael Kavanagh, Dist. Atty., Kingston (Donald H. Williams, Jr., Kingston, of counsel), for respondent.
Before MAHONEY, P.J., and MAIN, MIKOLL, YESAWICH and HARVEY, JJ.
Appeal from a judgment of the County Court of Ulster County, rendered May 12, 1982, upon a verdict convicting defendant of the crime of burglary in the second degree.
James Van Buren, having just entered his own driveway, observed an unfamiliar car containing two men in a parking lot across the street from the Kennedy residence the Kennedys were in Florida at the time. After watching the men share a cigarette and proceed into the woods behind the Kennedy house and then moments later hearing what appeared to be the sound of a door being kicked hard, Van Buren called the police. At approximately 11:30 P.M. on February 2, 1981, defendant and his codefendant were arrested as they attempted to run from a rear door to the Kennedys' porch into the wooded area. Following a joint trial, both were convicted of burglary in the second degree.
Defendant maintains that the trial court should have submitted to the jury the lesser included offense of attempted burglary in the second and third degrees. He also argues that the jury was improperly instructed that the Kennedys' enclosed porch was an integral part of the building and that one months' nonoccupancy did not necessarily cause the building to lose its character as a dwelling. We find no merit to any of defendant's contentions.
An attempt may be charged only when a reasonable view of the evidence would support a finding that the defendant committed such lesser offense, but not the greater (CPL 300.50, subd. 1). Here, defendant and his codefendant were seen exiting the Kennedys' kitchen door into the enclosed porch by Van Buren and were then seen leaving the porch by police officers. Additionally, a neighbor noticed flashlights inside the residence just prior to defendant's apprehension and a police officer heard noises from within as he came around the side of the Kennedy house. Subsequent investigation disclosed a forced entry through the kitchen door and a household in disarray. Later that week, two lit, but dim, flashlights were discovered in the dining room by a neighbor-caretaker. Given...
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People v. Sheirod
...element may be satisfied even though the residence is temporarily unoccupied at the time of the burglary (see, People v. Lewoc, 101 A.D.2d 927, 475 N.Y.S.2d 933). The issue presented here is whether absence for a year may be considered temporary. We conclude that it may and that the jury, p......
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