People v. Ruiz

• Decision Date: 21 January 1988
• Citation: 523 N.Y.S.2d 814,136 A.D.2d 493
• Parties: The PEOPLE of the State of New York, Respondent, v. Carmelo RUIZ, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 814

523 N.Y.S.2d 814

136 A.D.2d 493

The PEOPLE of the State of New York, Respondent, v. Carmelo RUIZ, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Jan. 21, 1988.

A. Ceva, for respondent.

D.E. Rosen, for defendant-appellant.

Before ROSS, J.P., and ASCH, MILONAS, ROSENBERGER and WALLACH, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, Bronx County (Robert G. Seewald, J.), rendered on September 29, 1986, convicting defendant, following a jury trial, of burglary in the first degree and sentencing him, as a second felony offender, to an indeterminate term of from eight to sixteen years, is unanimously modified on the law to the extent of reducing defendant's conviction to burglary in the second degree and remanding the matter for re-sentence and otherwise affirmed.

At approximately 1:30 P.M. on October 31, 1985, Police Officers Joseph Agresta and Domenick Canale and Detective Eddie Newton responded to a radio report concerning a burglary in progress at 984 Sheridan Avenue in Bronx County. They proceeded to that location, whereupon Detective Newton went to the rear of the building, Officer Agresta started up toward the roof and Officer Canale headed to Apartment 5F. Officer Canale, who was dressed in civilian clothing heard movement inside the apartment and knocked on the door. The officer, aware that the peephole was being opened, displayed his gun and shield. Defendant herein unlocked the door and spoke with Officer Canale. Shortly thereafter, Officer Agresta, hearing that Officer Canale was speaking with someone, returned from the roof and joined his fellow officer in the apartment. Both officers noticed that a burglar alarm system mounted on the wall behind the door inside the apartment was bent and damaged and that the apartment had been ransacked. Dresser drawers had been removed from furniture and their contents dumped on the bed, closets were ajar and disordered and a jewelry box was open.

Officer Canale then exited the apartment, leaving Officer Agresta behind to guard defendant. He proceeded to the roof, where he looked over the edge and observed Detective Newton in the rear of the building. The two engaged in a brief conversation before Officer Canale returned to the landing. In the meantime, Officer Agresta, holding defendant at gunpoint, went to some neighboring apartments and, after interviewing the occupants, pushed defendant to the floor and informed him that he was under arrest. At that point, Officer Canale and Detective Newton arrived, and, with all three policemen present, defendant was raised from the floor, and they attempted to handcuff him. However, defendant resisted, and, in the ensuing struggle, Officer Canale was hurt. According to the testimony at trial, when the police initially tried to put handcuffs on defendant, Officer Canale grabbed defendant's left hand and Officer Agresta his right hand. Defendant responded by "pushing towards the steps" [of the staircase in the building]. In an effort to subdue defendant, Officer Canale placed the former in a bear hug from behind, but the defendant seized Officer Canale's left index finger and forced it backwards, injuring the officer.

During the struggle, Ms. Corona Vasquez returned to her home, apartment 5F. Vasquez stated at trial that when she had departed that morning, she had left her apartment in order, set the burglar alarm and locked her door and windows. She had never seen defendant before, and he did not have her permission to enter the apartment. At any rate, when the policemen finally succeeded in overcoming defendant, he was cuffed to an iron railing leading up to the next landing. A search of his person revealed several pieces of jewelry which were later identified by Vasquez as belonging to her. In addition, a fingerprint found on the damaged alarm box was subsequently shown to match defendant's print.

Defendant, who took the stand in his own defense, denied any involvement in the burglary of Vasquez's apartment and contradicted the People's claim that he had her jewelry in his possession. He asserted that on the day of his arrest, he was waiting for a friend in front of Vasquez's building when three plainclothes policemen, for no apparent reason, forced him inside, dragged him up five flights of stairs into apartment 5F and arrested him for burglary. However, he did admit to resisting the officers' effort to handcuff him. The jury, evidently accepting the version of events offered by the prosecution, convicted defendant of burglary in the first degree, and defendant has appealed.

Defendant urges that the People have failed to establish the crime of burglary in the first degree and that the court's instruction to the jury on reasonable doubt constituted reversible error. We find that there is merit to the first of these contentions. In that connection, section 140.30 of the Penal Law provides that "[a] person is guilty of burglary in the first degree when he knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein and when, in effecting entry or while in the dwelling or in immediate flight therefrom, he or another...