| People v Camelo |
| 2008 NY Slip Op 01248 [48 AD3d 1303] |
| February 8, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Nicholas J.Camelo, Jr., Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), renderedSeptember 3, 2004. The judgment convicted defendant, upon a jury verdict, of burglary in thesecond degree, petit larceny, criminal trespass in the second degree (two counts), unlawfulimprisonment in the second degree and resisting arrest.
It is hereby ordered that the judgment so appealed from is unanimously modified on the factsby reversing those parts convicting defendant of burglary in the second degree and petit larcenyand dismissing counts one and two of the indictment and as modified the judgment is affirmed,and the matter is remitted to Oneida County Court for proceedings pursuant to CPL 470.45.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, one count each of burglary in the second degree (Penal Law § 140.25 [2]) andpetit larceny (§ 155.25) and two counts of criminal trespass in the second degree (§140.15). The burglary and petit larceny charges stem from defendant's entry into the apartmentwhere defendant had been living with his girlfriend and their two children, and his removaltherefrom of his girlfriend's clothing. The criminal trespass charges stem from defendant's entryinto that apartment on two other occasions. Defendant failed to preserve for our review hischallenge to the legal sufficiency of the evidence with respect to the conviction of petit larceny(see People v Gray, 86 NY2d 10, 19 [1995]) and, in any event, we reject his contentionthat the conviction with respect to all counts is not supported by legally sufficient evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). In addition, we rejectdefendant's contention that the verdict with respect to the two counts of criminal trespass isagainst the weight of the evidence (see generally id.).
We agree with defendant, however, that the verdict is against the weight of the evidence withrespect to the count of petit larceny (see generally id.). Although the weight of theevidence establishes that defendant removed some of his girlfriend's belongings from theapartment, it also establishes that he voluntarily returned those belongings to his girlfriend withina short time thereafter. Consequently, the evidence weighs heavily in favor of a finding thatdefendant did not intend to steal the property from his girlfriend within the meaning of PenalLaw § 155.25, [*2]i.e., he did not intend "to withhold [theproperty] from [her] permanently" (§ 155.00 [3]; see § 155.05; seegenerally People v O'Reilly, 125 AD2d 979 [1986]). We find that the jury "failed to give theevidence the weight it should be accorded" on the issue of defendant's intent to commit petitlarceny (Bleakley, 69 NY2d at 495), and we therefore modify the judgment by reversingthat part convicting defendant of petit larceny and dismissing count two of the indictment. Inview of our reversal of that part of the judgment convicting defendant of petit larceny as againstthe weight of the evidence, and because there is no evidence that defendant intended to commitany other crime upon his entry into the apartment (cf. People v Lewis, 5 NY3d 546, 551-552 [2005]), we further findthat the burglary conviction is against the weight of the evidence (see generally People vGaines, 74 NY2d 358, 362-363 [1989]). We therefore further modify the judgment byreversing that part convicting defendant of burglary in the second degree and dismissing countone of the indictment.
We have considered defendant's remaining contentions, and conclude that they are withoutmerit. We note, however, that the certificate of conviction inaccurately reflects that defendantwas convicted of unlawful imprisonment in the second degree under Penal Law § 130.05,and it therefore must be amended to reflect that he was convicted under Penal Law §135.05 (see People v Martinez, 37AD3d 1099, 1100 [2007], lv denied 8 NY3d 947 [2007]). Present—Gorski,J.P., Martoche, Smith, Centra and Green, JJ.