People v. Wright

• Decision Date: 15 October 2014
• Citation: 994 N.Y.S.2d 396,121 A.D.3d 924,2014 N.Y. Slip Op. 07003
• Parties: The PEOPLE, etc., respondent, v. Raymond WRIGHT, appellant.
• Court: New York Supreme Court — Appellate Division

?121 A.D.3d 924
994 N.Y.S.2d 396
2014 N.Y. Slip Op. 07003

The PEOPLE, etc., respondent,
v.
Raymond WRIGHT, appellant.

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

Oct. 15, 2014

Reversed.

[994 N.Y.S.2d 399]

Carol Kahn, New York, N.Y., for appellant.

William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.

Appeal by the defendant from a judgment of the County Court, Dutchess County (Forman, J.), rendered March 22, 2012, convicting him of attempted burglary in the second degree and attempted burglary in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and a new trial is ordered.

The defendant was convicted of attempted burglary in the second degree and attempted burglary in the third degree for allegedly attempting to enter a vacant first-floor apartment and an occupied second-floor apartment at a two-story two-family residence in Poughkeepsie. The People's evidence at trial consisted primarily of the testimony of a single eyewitness and the circumstantial evidence of a metal pry bar lodged into the back door of the first-floor apartment, another metal bar found next to that door, and damage consistent with someone trying to open that door by force.

Viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of attempted burglary in the second degree and attempted burglary in the third degree beyond a reasonable doubt ( cf. Penal Law §§ 110.00, 140.25[2]; 140.20). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15 [5]; People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record here, we are satisfied that the verdict of guilt as to both crimes was not against the weight of the credible evidence ( see People v. Romero, 7 N.Y.3d 633, 643, 826 N.Y.S.2d 163, 859 N.E.2d 902).

Contrary to the defendant's contention, the County Court properly denied his request to charge the jury on criminal trespass in the third degree as a lesser included offense of attempted burglary in the second degree. To establish entitlement to a charge on a lesser included offense, a defendant must show both that the greater crime cannot be committed without having concomitantly committed the lesser by the same conduct, and that a

[994 N.Y.S.2d 400]

reasonable view of the evidence supports a finding that he or she committed the lesser, but not the greater, offense ( see CPL 1.20[37]; 300.50[1], [2]; People v. James, 11 N.Y.3d 886, 888, 874 N.Y.S.2d 864, 903 N.E.2d 261; People v. Barney, 99 N.Y.2d 367, 371, 756 N.Y.S.2d 132, 786 N.E.2d 31; People v. Van Norstrand, 85 N.Y.2d 131, 135, 623 N.Y.S.2d 767, 647 N.E.2d 1275). Here, the defendant failed to show that attempted burglary in the second degree cannot be committed without concomitantly committing criminal trespass in the third degree. Furthermore, to the extent that the defendant argues that the trial court should have charged the jury with some degree of attempted criminal trespass, the court's failure to submit such an offense to the jury “does not constitute error” since neither party requested that charge (CPL 300.50[2] ).

The defendant contends that it was error to admit into evidence the metal pry bar that was found lodged into the first-floor apartment door and the other metal bar found next to that door, as well as evidence of the damage to that door. This contention is unpreserved for appellate review, since he did not object to the admission of this evidence at trial ( see CPL 470.05 [2] ). In any event, this contention is without merit. The contested evidence was relevant to provide circumstantial proof of the defendant's guilt of attempted burglary in the third degree, as well as to provide evidence of the defendant's intent to commit burglary in the second degree ( see generally People v. Giles, 11 N.Y.3d 495, 499, 873 N.Y.S.2d 244, 901 N.E.2d 737; People v. Primo, 96 N.Y.2d 351, 355, 728 N.Y.S.2d 735, 753 N.E.2d 164; People v. Scarola, 71 N.Y.2d 769, 777, 530 N.Y.S.2d 83, 525 N.E.2d 728).

Nonetheless, the defendant is entitled to a new trial because the County Court, on the People's case-in-chief, allowed the introduction of evidence of six prior crimes where the defendant was found either in possession of stolen items and burglar's tools, including pry bars, or was caught in the act of burglarizing or attempting to burglarize properties in the same area as the residence at issue here.

Evidence of another crime committed by the defendant, not charged in the indictment, is not admissible if it tends only to demonstrate the defendant's propensity to commit the crime charged and cannot logically be connected to some specific material issue in the...