People v. Martinez
| Decision Date | 23 January 1987 |
| Citation | 126 A.D.2d 942,511 N.Y.S.2d 988 |
| Parties | PEOPLE of the State of New York, Respondent, v. Jose MARTINEZ, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Daniel Meyer, Rochester, for appellant.
Howard R. Relin by Melvin Eressler, Rochester, for respondent.
Before DILLON, P.J., and DOERR, GREEN, PINE and LAWTON, JJ.
A person is guilty of burglary in the first degree when he knowingly enters or remains unlawfully in a dwelling and with intent to commit a crime therein causes physical injury to any person who is not a participant in the crime (Penal Law § 140.30[2] ). Defendant clearly is guilty of burglary in the first degree, but since there was but one entry he can only be convicted of one count of burglary. We, therefore, must reverse his conviction on the second count of burglary (People v. McCray, 61 A.D.2d 860, 861, 401 N.Y.S.2d 908; People v. Perrin, 56 A.D.2d 957, 958, 392 N.Y.S.2d 723).
Defendant also argues that the indictment should be dismissed on constitutional speedy trial grounds, relying on our decision in a case of a co-defendant (People v. Brown, 117 A.D.2d 978, 499 N.Y.S.2d 529). The distinction between the two cases, however, is that defendant, unlike Brown, made no motion for relief under CPL 30.20. "No application for the relief now sought having been made in Supreme Court in the criminal action and accordingly there having been no denial of a request for such relief, as a matter of appellate procedure * * * there was no ruling of the trial court in this action to be reviewed by the Appellate Division * * * (People v. Whisby, 48 N.Y.2d 834 [424 N.Y.S.2d 344, 400 N.E.2d 286]; People v. Adams, 38 N.Y.2d 605 [381 N.Y.S.2d 847, 345 N.E.2d 318] )" (People v. Jordan, 62 N.Y.2d 825, 826, 477 N.Y.S.2d 605, 466 N.E.2d 145; see also, People v. Lawrence, 64 N.Y.2d 200, 485 N.Y.S.2d 233, 474 N.E.2d 593).
We note that defendant's notice of appeal in the second appeal is simply a duplication of his appeal herein and, therefore, must be dismissed.
We have examined the many other issues raised by defendant on this appeal and find them to be without merit.
Judgment unanimously modified on the law and as modified affirmed.
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...Defendant has argued that "since there [is] but one entry [defendant] can only be convicted of one count of burglary" (People v. Martinez, 126 A.D.2d 942, 511 N.Y.S.2d 988, lv. denied 69 N.Y.2d 952, 516 N.Y.S.2d 1036, 509 N.E.2d 371; see also, People v. Sillaway, 144 A.D.2d 959, 534 N.Y.S.2......
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...in part. Defendant was improperly convicted of two counts of burglary when there was but one illegal entry (see, People v. Martinez, 126 A.D.2d 942, 511 N.Y.S.2d 988, lv. denied 69 N.Y.2d 952, 516 N.Y.S.2d 1036, 509 N.E.2d 371; People v. McCray, 61 A.D.2d 860, 401 N.Y.S.2d 908; People v. Pe......
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...However, because defendant never asserted a speedy trial claim in the trial court, the issue is not only unpreserved (People v. Martinez, 126 A.D.2d 942, 511 N.Y.S.2d 988), but there is no record upon which this court can review his claim. In any event, taking the record as we find it, defe......