| People v VanDyne |
| 2009 NY Slip Op 04809 [63 AD3d 1681] |
| June 12, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DavidVanDyne, Sr., Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Wendy Evans Lehmann of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J.), rendered June7, 2005. The judgment convicted defendant, upon a jury verdict, of murder in the first degree,murder in the second degree and robbery in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reversing that part convicting defendant of murder in the second degree and dismissing counttwo of the indictment and as modified the judgment is affirmed.
Memorandum: On appealfrom a judgment convicting him, following a jury trial, of murder in the first degree (Penal Law§ 125.27 [1] [a] [vii]; [b]), murder in the second degree (§ 125.25 [3]) and robberyin the first degree (§ 160.15 [2]), defendant contends that his warrantless arrest was illegal.We reject that contention. It is well settled that "the Fourth Amendment to the United StatesConstitution, made applicable to the States by the Fourteenth Amendment . . . ,prohibits the police from making a warrantless and nonconsensual entry into a suspect's home inorder to make a routine felony arrest" (Payton v New York, 445 US 573, 576 [1980];see People v Levan, 62 NY2d 139, 144 [1984]). Contrary to the contention of defendant, weconclude that the unlocked storage cubicle in which he was arrested did not constitute his"home." The storage cubicle was located in the basement of an apartment building wheredefendant had previously resided. After being given a three-day notice with respect to his failureto pay rent, defendant voluntarily vacated his apartment and turned in his keys, evincing anintent to terminate the lease rather than face additional charges based on his nonpayment of rent.Thus, although the lease had not expired at the time of the arrest, defendant no longer had areasonable expectation of privacy in the apartment or any storage cubicles based on the lease (see e.g. People v Bradley, 17 AD3d1050, 1051 [2005], lv denied 5 NY3d 786 [2005]; People v Sapp, 280 AD2d906 [2001], lv denied 96 NY2d 834 [2001]; People v Orlando, 223 AD2d 927[1996], lv denied 88 NY2d 851 [1996]).
We reject the further contention of defendant that he had made the storage cubicle in whichhe was arrested into his "makeshift bedroom" and thus had a reasonable expectation of privacythere (see People v Phillips, 118 AD2d 600, 601 [1986], lv denied 67 NY2d 948[1986]; see also People v Williams, 180 AD2d 703 [1992]; People v Williams,100 AD2d 602 [1984]). Indeed, the record [*2]establishes thatdefendant was arrested in a storage cubicle that had not been assigned to him and was accessibleto all tenants in the apartment building (see generally People v Allen, 54 AD3d 868, 869 [2008], lvdenied 11 NY3d 922 [2009]).
Viewing the evidence in light of the elements of murder in the first degree as charged to thejury (see generally People vDanielson, 9 NY3d 342, 349 [2007]), we reject defendant's contention that the verdicton that count is against the weight of the evidence (see generally People v Bleakley, 69NY2d 490, 495 [1987]). Inasmuch as the evidence supports the determination that defendantcommitted the murder "in furtherance of robbery" (Penal Law § 125.27 [1] [a] [vii]), itcannot be said that the jury "failed to give the evidence the weight it should be accorded"(Bleakley, 69 NY2d at 495). Although we agree with defendant that a gratuitousreference to religion by a prosecution witness was improper, the jury was instructed to disregardthat reference, and "[t]he jury is presumed to have followed [that] instruction . . . ,thereby alleviating any prejudice to defendant" (People v Young, 55 AD3d 1234, 1236 [2008], lv denied 11NY3d 901 [2008]). In any event, we conclude that the error is harmless (see People v Johnson, 3 AD3d581 [2004], lv denied 2 NY3d 763 [2004]; see also People v Dat Pham, 283AD2d 952 [2001], lv denied 96 NY2d 900 [2001]; cf. People v Benedetto, 294AD2d 958 [2002]; see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]).
As the People correctly concede, however, that part of the judgment convicting defendant ofmurder in the second degree must be reversed and count two of the indictment dismissedinasmuch as second degree felony murder is a lesser included offense of first degree intentionalfelony murder (see CPL 300.40 [3] [b]; People v Santiago, 41 AD3d 1172, 1175 [2007], lv denied9 NY3d 964 [2007]). We therefore modify the judgment accordingly. Present—Martoche,J.P., Smith, Centra, Fahey and Pine, JJ.