People v. Rivera

• Decision Date: 07 May 1992
• Citation: 584 N.Y.S.2d 1,183 A.D.2d 420
• Parties: The PEOPLE of the State of New York, Respondent, v. Juan RIVERA, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 1

584 N.Y.S.2d 1

183 A.D.2d 420

The PEOPLE of the State of New York, Respondent, v. Juan RIVERA, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

May 7, 1992.

Before MURPHY, P.J., and MILONAS, ELLERIN, ASCH and RUBIN, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County (Lawrence Tonetti, J.), rendered February 2, 1990, convicting defendant of murder in the second degree, burglary in the first degree, and criminal possession of a weapon in the fourth degree, and sentencing him to concurrent terms of imprisonment of 15 years to life and 10 to 20 years, and an unconditional discharge, respectively, unanimously affirmed.

Viewing the facts in a light most favorable to the People and giving them the benefit of every reasonable inference to be drawn therefrom, we have no difficulty in accepting as reasonable the inference that defendant, acting in concert with his codefendants, who unsuccessfully challenged the sufficiency of the evidence on their appeals (People v. Ortiz, 173 A.D.2d 189, 569 N.Y.S.2d 81, lv. denied 78 N.Y.2d 1129, 578 N.Y.S.2d 887, 586 N.E.2d 70; People v. Sanchez, 177 A.D.2d 267, 576 N.Y.S.2d 494, lv. denied 79 N.Y.2d 863, 580 N.Y.S.2d 735, 588 N.E.2d 770), caused the death of the victim (Penal Law 125.25[3]; People v. Benzinger, 36 N.Y.2d 29, 364 N.Y.S.2d 855, 324 N.E.2d 334; People v. Wood, 8 N.Y.2d 48, 51-53, 201 N.Y.S.2d 328, 167 N.E.2d 736). Defendant argues that the victim might have fallen through the window to avoid being shot by a "non-participant" taking defensive action, but the claim rests on speculation.

Nor is the proof of defendant's guilt insufficient because the court charged that in order to establish felony murder the evidence had to show that defendant committed the crime of burglary in the first degree. The evidence at trial shows that the entire building was a dwelling; unlawful entry into part of a building that is a dwelling is the burglary of that "dwelling" (People v. Torres, 162 A.D.2d 385, 556 N.Y.S.2d 920; lv. denied 76 N.Y.2d 897, 561 N.Y.S.2d 559, 562 N.E.2d 884), and Penal Law 140.00(2) provides, inter alia, that "where a building consists of two or more units separately secured or occupied, each unit shall be deemed both a separate building in itself and a part of the main building." Accordingly any question whether the particular apartment in which the attack occurred was a separate dwelling was not a basis for an acquittal (see also, People v. Lewoc, 101...