| People v Dawson |
| 2010 NY Slip Op 09631 [79 AD3d 1610] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Daniel N. Dawson, Appellant. |
—[*1] Daniel N. Dawson, defendant-appellant pro se. Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered July18, 2008. The judgment convicted defendant, upon a jury verdict, of burglary in the first degree(two counts), burglary in the second degree, assault in the second degree and attempted assault inthe second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia,two counts of burglary in the first degree (Penal Law § 140.30 [2], [3]), defendantcontends that the prosecutor's summation and County Court's jury charge improperly altered thetheory of the prosecution. We address that contention despite defendant's failure to preserve it forour review because "the 'right of an accused to be tried and convicted of only those crimes andupon only those theories charged in the indictment is fundamental and nonwaivable' " (Peoplev Burnett, 306 AD2d 947, 948 [2003], quoting People v Rubin, 101 AD2d 71, 77[1984], lv denied 63 NY2d 711 [1984]; see People v Greaves, 1 AD3d 979, 980 [2003]). Nevertheless, wereject that contention inasmuch as the record establishes that defendant received the requisite"fair notice of the accusations made against him, so that he [was] able to prepare a defense"(People v Iannone, 45 NY2d 589, 594 [1978]; see People v Grega, 72 NY2d 489,495 [1988]). Although the indictment and the bill of particulars referred solely to a "pellet gun,"the court's reference in the jury charge to a pellet gun or a BB gun "did not charge 'a substantivecrime not appearing in the indictment or amend[ ] the indictment to charge additional criminalacts or crimes' " (People v Rivera, 84 NY2d 766, 769 [1995]), nor did the prosecutor'sreference thereto on summation change the theory of the prosecution. The testimony of thewitnesses referred only to one gun, and they used the terms "pellet gun" and "BB gun"interchangeably.
Contrary to defendant's further contention, the conviction is supported by legally sufficientevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Furthermore,viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not contrary to the weight of the evidence(see [*2]generally Bleakley, 69 NY2d at 495), and weconclude that the sentence is not unduly harsh or severe. Finally, we have considered theremaining contentions of defendant, including those raised in his pro se supplemental brief, andconclude that they are without merit. Present—Smith, J.P., Lindley, Sconiers, Pine andGorski, JJ.