| People v Harris |
| 2008 NY Slip Op 03907 [50 AD3d 1608] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Robert W.Harris, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice and on the law by amending the order of protection and asmodified the judgment is affirmed, and the matter is remitted to Onondaga County Court forfurther proceedings in accordance with the following memorandum: Defendant appeals from ajudgment convicting him upon a jury verdict of burglary in the first degree (Penal Law §140.30 [2]) and assault in the third degree (§ 120.00 [1]). County Court properly denieddefendant's request to charge criminal trespass in the second degree as a lesser included offenseof burglary in the first degree. There is no reasonable view of the evidence that would support afinding that defendant committed the lesser offense but not the greater (see People vGlover, 57 NY2d 61, 63 [1982]), i.e., "that he entered the [dwelling] unlawfully but for aninnocent purpose and developed the intent to commit a crime therein after his entry" (Peoplev Mercado, 294 AD2d 805, 805 [2002], lv denied 98 NY2d 731 [2002]; see also People v Martinez, 9 AD3d679, 681 [2004], lv denied 3 NY3d 709 [2004]). The court properly denieddefendant's Batson objection. The People provided a race-neutral explanation for theiruse of a peremptory challenge to excuse an African-American prospective juror, and "we affordconsiderable deference to [the court's] determination that the People's proffered explanation[ ][was] nonpretextual, especially since the court was present for the entire voir dire and uniquelysituated to assess the demeanor and body language of [that prospective] juror" (People v Morgan, 24 AD3d 950,952 [2005], lv denied 6 NY3d 815 [2006]). We further reject defendant's challenge to thelegal sufficiency of the evidence. Viewing the evidence in the light most favorable to the People,as we must (see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that it islegally sufficient to support the conviction (see generally People v Bleakley, 69 NY2d490, 495 [1987]), and we also reject defendant's contention that the verdict is against the weightof the evidence (see id.). The sentence is not unduly harsh or severe.
Defendant further contends that the court erred in setting the expiration date of the order ofprotection without taking into account the jail time credit to which he is entitled. We agree (see People v Fomby, 42 AD3d894, 896 [2007]; see also People v Viehdeffer, 288 AD2d 860 [2001]). [*2]Although defendant failed to preserve that contention for ourreview (see CPL 470.05 [2]), we nevertheless exercise our power to review it as a matterof discretion in the interest of justice (see CPL 470.15 [6] [a]). We therefore modify thejudgment by amending the order of protection, and we remit the matter to County Court todetermine the jail time credit to which defendant is entitled and to specify in the order ofprotection an expiration date in accordance with CPL 530.13 (former [4]), the version of thestatute in effect when the judgment was rendered on June 15, 2005. Present—Hurlbutt,J.P., Smith, Fahey, Green and Pine, JJ.