People v. Pritchard

• Decision Date: 28 April 2017
• Citation: 149 A.D.3d 1479,52 N.Y.S.3d 595
• Parties: The PEOPLE of the State of New York, Respondent, v. Kathleen M. PRITCHARD, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

149 A.D.3d 1479
52 N.Y.S.3d 595

The PEOPLE of the State of New York, Respondent,
v.
Kathleen M. PRITCHARD, Defendant–Appellant.

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

April 28, 2017.

52 N.Y.S.3d 595

Ganguly Brothers, PLLC, Rochester (Anjan K. Ganguly of Counsel), for Defendant–Appellant.

Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of Counsel), For Respondent.

52 N.Y.S.3d 596

PRESENT: WHALEN, P.J., SMITH, CENTRA, CURRAN, AND SCUDDER, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting her upon a jury verdict of burglary in the first degree (Penal Law § 140.30[2] ). The conviction arises from an incident in which defendant allegedly allowed her brother into a home in which she resided, whereupon he entered another resident's bedroom and assaulted that resident. Viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we conclude that the evidence is legally sufficient to support the conviction (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Furthermore, viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).

We agree with defendant, however, that Supreme Court erred in instructing the jury on the elements of the crime, and we therefore reverse the judgment and grant a new trial. Initially, we reject the People's contention that defendant failed to preserve her contention for our review. Although the codefendant's attorney made most of the defense arguments during the charge conference, defense counsel also objected to the court's proposed charge on the ground now advanced on appeal. Thus, because defendant " ‘without success has either expressly or impliedly sought or requested a particular ... instruction, [she] is deemed to have thereby protested the court's ... failure to ... instruct accordingly sufficiently to raise a question of law with respect to such ... failure’ " (People v. Medina, 18 N.Y.3d 98, 103–104, 936 N.Y.S.2d 608, 960 N.E.2d 377, quoting CPL 470.05 [2] ).

"It is well settled that, ‘[i]n evaluating a challenged jury instruction, we view the charge as a whole in order to determine whether a claimed deficiency in the jury charge requires reversal’ " (People v. Walker, 26 N.Y.3d 170, 174, 21 N.Y.S.3d 191, 42 N.E.3d 688 ). A person is guilty of burglary in the first degree, in pertinent part, when he or she "knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein" (Penal Law § 140.30[2] ). " ‘Dwelling’ means a building which is usually occupied by a person lodging therein at night" (§ 140.00 [3] ), and "the definition of ‘building’ includes the following: ‘Where a building consists of two or more units...