People v. Sterina

• Decision Date: 05 July 2013
• Citation: 968 N.Y.S.2d 296,108 A.D.3d 1088,2013 N.Y. Slip Op. 05142
• Parties: The PEOPLE of the State of New York, Respondent, v. Carla C. STERINA, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

108 A.D.3d 1088
968 N.Y.S.2d 296
2013 N.Y. Slip Op. 05142

The PEOPLE of the State of New York, Respondent,
v.
Carla C. STERINA, Defendant–Appellant.

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

July 5, 2013.

[968 N.Y.S.2d 297]

Schiano Law Office, P.C., Rochester (Michael P. Schiano of Counsel), for Defendant–Appellant.

Sandra Doorley, District Attorney, Rochester (Matthew Dunham of Counsel), for Respondent.

[968 N.Y.S.2d 298]

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, AND VALENTINO, JJ.

MEMORANDUM:

[108 A.D.3d 1089]Defendant appeals from a judgment convicting her upon a jury verdict of two counts each of burglary in the first degree (Penal Law § 140.30[2], [3] ) and assault in the second degree (§ 120.05 [2], [6] ). We reject defendant's contention that Supreme Court erred in refusing to charge criminal trespass in the second degree (§ 140.15[1] ) as a lesser included offense of burglary in the first degree (§ 140.30[2], [3] ). Contrary to defendant's contention, there is no reasonable view of the evidence to support the theory that she unlawfully entered the victim's dwelling, but did not intend to commit a crime therein ( see§ 140.30; People v. Santos, 101 A.D.3d 427, 428, 955 N.Y.S.2d 323,lv. denied20 N.Y.3d 1103, 965 N.Y.S.2d 799, 988 N.E.2d 537;People v. Clarke, 233 A.D.2d 831, 832, 649 N.Y.S.2d 568,lv. denied89 N.Y.2d 1010, 658 N.Y.S.2d 248, 680 N.E.2d 622,reconsideration denied90 N.Y.2d 856, 661 N.Y.S.2d 183, 683 N.E.2d 1057;see generally People v. Glover, 57 N.Y.2d 61, 63–64, 453 N.Y.S.2d 660, 439 N.E.2d 376). The evidence established that defendant and her accomplices broke down the door, entered the house armed with one or more baseball bats, and immediately attacked the victim's son ( see People v. Massey, 45 A.D.3d 1044, 1046, 845 N.Y.S.2d 197,lv. denied9 N.Y.3d 1036, 852 N.Y.S.2d 21, 881 N.E.2d 1208). To the extent that defendant contends that she was entitled to the lesser included charge because there is a reasonable view of the evidence that she did not enter the victim's house, that assertion is unpreserved ( see People v. McCoy, 91 A.D.3d 537, 537–538, 937 N.Y.S.2d 45). In any event, that contention lacks merit inasmuch as both criminal trespass in the second degree and burglary in the first degree require entry into a dwelling ( see §§ 140.15[1]; 140.30).

As defendant correctly concedes, her challenge to the legal sufficiency of the evidence with respect to the crime of burglary in the first degree is unpreserved for our review inasmuch as she failed to renew her motion for a trial order of dismissal after presenting evidence ( see People v. Lugo, 87 A.D.3d 1403, 1404, 930 N.Y.S.2d 114,lv. denied18 N.Y.3d 860, 938 N.Y.S.2d 868, 962 N.E.2d 293). In any event, that contention is without merit. Contrary to defendant's contention, the People established that she entered a dwelling, i.e., the victim's home, which is a necessary element of burglary in the [108 A.D.3d 1090]first degree ( seePenal Law § 140.30; People v. Prince, 51 A.D.3d 1052, 1053–1054, 857 N.Y.S.2d 320,lv. denied10 N.Y.3d 938, 862 N.Y.S.2d 345, 892 N.E.2d 411). The entry element of burglary is satisfied “when a person intrudes within a [dwelling], no matter how slightly, with any part of his or her body” ( People v. King, 61 N.Y.2d 550, 555, 475 N.Y.S.2d 260, 463 N.E.2d 601;see People v. Cleveland, 281 A.D.2d 815, 816, 721 N.Y.S.2d 876,lv. denied96 N.Y.2d 900, 730 N.Y.S.2d 797, 756 N.E.2d 85). Here, several witnesses unequivocally testified that defendant and another assailant entered the foyer of the victim's home after breaking down the door, and a recording of the contemporaneous 911 call made by the victim's sister indicates that she told the 911 operator that the assailants were “inside the house” ( see generally Prince, 51 A.D.3d at 1054, 857 N.Y.S.2d 320;People v. Rivera, 301 A.D.2d 787, 788, 754 N.Y.S.2d 74,lv. denied99 N.Y.2d 631, 760 N.Y.S.2d 113, 790 N.E.2d 287). Indeed, the victim specifically identified the location where she observed defendant and the other assailant...