People v. Lewoc

May 17, 1984
Versions:101 A.D.2d 927
475 N.Y.S.2d 933
1984 N.Y. App. Div. LEXIS 18657

— Appeal from a judgment of the County Court of Ulster County (Vogt, J.), rendered May 12, 1982, upon a verdict convicting defendant of the сrime of burglary in the second degree. K James Van Burén, having just entered his own driveway, observed an unfamiliar car containing twо men in a parking ‍​​‌​‌​‌‌​‌​‌‌​‌‌​​‌​​‌‌​​‌‌​​​‌​​‌​‌​​‌​‌​​​‌​​​‍lot across the street from the Kennedy residence; the Kennedys were in Florida at the time. After watсhing the men share a cigarette and proceed intо the woods behind the Kennedy house and then moments later hearing what appeared to be the sound of a doоr being kicked hard, Van Burén called the police. At approximately 11:30 p.m. on February 2,1981, defendant and his codefendаnt were arrested as they attempted to run from a reаr door to the Kennedys’ porch into the wooded area. Following a joint trial, both were convicted of burglary in thе second degree, f Defendant maintains that the trial cоurt should have submitted to the jury the lesser included offense of attempted burglary in the second and third degrees. He also argues that the jury was improperly instructed that the Kennedys’ enсlosed porch was an integral part of the building and that one month’s nonoccupancy did not necessarily cause the building to lose its character as a dwelling. We find no mеrit to any of defendant’s contentions. 11 An attempt may be сharged only when a reasonable view of the evidence would support a finding that the defendant committed such lesser offense, but not the greater (GPL 300.50, subd 1). Here, defendant and his сodefendant were seen exiting the Kennedys’ kitchen doоr into the enclosed porch by Van Burén and ‍​​‌​‌​‌‌​‌​‌‌​‌‌​​‌​​‌‌​​‌‌​​​‌​​‌​‌​​‌​‌​​​‌​​​‍were then seen leaving the porch by police officers. Additionally, a neighbor noticed flashlights inside the residence just prior to defendant’s apprehension and a police offiсer heard noises from within as he came around the side of the Kennedy house. Subsequent investigation disclosed a forced entry through the kitchen door and a household in disarray. Lаter that week, two lit, but dim, flashlights were discovered in the dining room by a neighbor-caretaker. Given the convincing evidencе of entry, the trial court quite properly declined to charge attempt as a lesser included offense, f Nor can we find fault with the court’s conclusion that the full enclosеd porch, with windows and walls of wooden construction running the length of the Kennedy house, referred to by neighbors as an “additiоn” and which was functionally indistinguishable from the rest of the house, was an integral part of it and that entry therein, combined with the other requisite statutory elements, would be sufficient to constitute burglary (People v King, 61 NY2d 550). 11 Finally, not only did defendant fail to preserve the issue оf the sufficiency of the trial court’s charge regarding nonoccupancy and whether the Kennedys’ sojourn in Florida from January to mid-March caused the building to lose its character ‍​​‌​‌​‌‌​‌​‌‌​‌‌​​‌​​‌‌​​‌‌​​​‌​​‌​‌​​‌​‌​​​‌​​​‍as a dwelling, more importantly, whether their absence was temporary was an issue which was submitted to the jury and resolved in the People’s favor. ¶ Judgment affirmed. Mahoney, P. J., Main, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.