| People v Degnan |
| 2019 NY Slip Op 00327 [168 AD3d 1224] |
| January 17, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Michael J. Degnan, Appellant. |
William T. Morrison, Albany, for appellant.
Michael D. Ferrarese, Acting District Attorney, Norwich (Karen Fisher McGee, New YorkProsecutors Training Institute, Inc., Albany, of counsel), for respondent.
Clark, J. Appeal from a judgment of the County Court of Broome County (Burns, J.),rendered April 1, 2016, upon a verdict convicting defendant of the crimes of burglary in thesecond degree, endangering the welfare of a child and petit larceny (three counts).
In September 2013, defendant was charged with various crimes stemming from allegationsthat he sexually assaulted a 14-year-old girl and thereafter committed a series of offenses in aneffort to evade apprehension. Following a jury trial, defendant was convicted of burglary in thesecond degree, endangering the welfare of a child and three counts of petit larceny.[FN1] Defendant was sentenced as apersistent violent felony offender to a prison term of 25 years to life for his burglary convictionand concurrent one-year jail terms for each of his remaining misdemeanor convictions.Defendant now appeals.
We agree with defendant, and the People concede, that the evidence was legally insufficientto support the conviction for burglary in the second degree. As relevant here, that crime requiresproof that defendant knowingly and unlawfully entered a dwelling with intent to commit a crimetherein (see Penal Law § 140.25 [2]). Additionally, at the time of theunlawful entry, defendant must have harbored a contemporaneous criminal intent other thancriminal trespass (see People v Gaines, 74 NY2d 358, 363 [1989]; People v Simmons, 111 AD3d975, 979 [2013], lv denied 22 NY3d 1203 [2014]; People v Douglas, 24 AD3d 1019,1020 [2005]). The People argued at trial that, indicative of a consciousness of guilt relating to thesex offense charges, defendant unlawfully entered the dwelling to evade arrest and that sometimethereafter he formed an intent to steal several articles of clothing. Given this theory, the Peoplefailed to present any evidence that could provide a valid line of reasoning and permissibleinferences from which a rational juror could have concluded that, at the time of entry, defendanthad a larcenous intent (see People vBeauvais, 105 AD3d 1081, 1084 [2013]; People v Rumley, 102 AD3d 894, 895 [2013]; Matter of William A., 4 AD3d647, 648-649 [2004]). Absent legally sufficient proof of the intent element, the convictionfor burglary in the second degree cannot stand.
However, we find that the evidence was legally sufficient to establish the lesser includedoffense of criminal trespass in the second degree, which, as relevant here, requires proof thatdefendant knowingly and unlawfully entered a dwelling (see Penal Law§ 140.15 [1]). The trial evidence established that, without permission, defendantentered a fully furnished residence with working utilities that, although temporarily unoccupiedat the time of defendant's entry, was used by the owner—or authorized guests—forovernight lodging, particularly during the warmer months. Viewed in the light most favorable tothe People, such evidence was legally sufficient to establish that defendant knowingly andunlawfully entered a dwelling, so as to satisfy the elements of criminal trespass in the seconddegree (see generally People v Quattlebaum, 91 NY2d 744, 747-748 [1998]; cf. People v Henry, 64 AD3d 804,805 [2009], lv denied 13 NY3d 860 [2009]; People v Thomas, 33 AD3d 1056, 1056-1057 [2006], lvdenied 8 NY3d 850 [2007]). Accordingly, pursuant to our authority under CPL 470.15 (2)(a), we reduce defendant's conviction for burglary in the second degree to criminal trespass in thesecond degree (see People v Beauvais, 105 AD3d at 1084; People v Rumley, 102AD3d at 895; People v Green, 24AD3d 16, 20 [2005]).[FN2]
In light of our determination, defendant's remaining contentions have been renderedacademic.
Lynch, J.P., Mulvey, Devine and Rumsey, JJ., concur. Ordered that the judgment ismodified, on the law, by reducing defendant's conviction of burglary in the second degree undercount 8 of the indictment to criminal trespass in the second degree and resentencing defendant totime served on said count, and, as so modified, affirmed.
Footnote 1:The jury acquitted defendant oftwo counts of criminal sexual act in the second degree. The jury was unable to reach a verdict onone count of rape in the second degree and two counts of grand larceny in the fourth degree.
Footnote 2:We need not remit the matter forresentencing because defendant has already served the maximum time to which he could havebeen sentenced on the misdemeanors (see People v Clark, 52 AD3d 860, 861 n [2008], lv denied11 NY3d 831 [2008]; People vHumes, 16 AD3d 844, 846 [2005]).