| People v Kim |
| 2011 NY Slip Op 03087 [83 AD3d 866] |
| April 12, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Anthony Kim, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary Fidel and Jill Gross-Marksof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.),rendered April 2, 2008, convicting him of attempted burglary in the second degree and criminalmischief in the fourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byvacating the conviction of attempted burglary in the second degree, vacating the sentenceimposed thereon, and dismissing the first count of the indictment with leave to the People tore-present any appropriate charges to another grand jury (see People v Beslanovics, 57NY2d 726, 727 [1982]); as so modified, the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conductan independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342[2007]), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]). In addition, contrary to the defendant's contention, a recording of the complainant's 911call was properly admitted into evidence as an excited utterance (see People v Prashad,297 AD2d 352 [2002]; People v Wine, 279 AD2d 424 [2001]; People v Spence,286 AD2d 617 [2001]).
Nevertheless, we find that the Supreme Court improvidently exercised its discretion infailing to submit to the jury the crime of attempted criminal trespass in the second degree as alesser included offense of attempted burglary in the second degree (see CPL 300.50 [1]).As the defendant correctly contends, this issue has been preserved for appellate review(see CPL 470.05 [2]; People vFeingold, 7 NY3d 288, 290 [2006]; People v Berry, 49 AD3d 888, 889 [2008]). Viewed in the lightmost favorable to the defendant, there is a reasonable view of the evidence which would supporta finding that the defendant committed the lesser offense of attempted criminal trespass in thesecond degree but did not commit the greater offense of attempted burglary in the second degree(see People v Henderson, 41 NY2d 233, 236-237 [1976]; People v Land, 131AD2d 883 [1987]; see also People vDevonish, 6 NY3d 727, 728 [2005]).
The complainant testified that at about 11:30 a.m. on the day of the incident, he heard a loudbanging on the back door of his residence, which sounded like it was being kicked in. As heapproached the door, it flew open and he saw the defendant and codefendant standing by thedoorway. Upon seeing the complainant, the defendant and codefendant ran away. No burglar'stools were [*2]recovered or found at the premises. The defendanttestified at trial that he and the codefendant were walking around the neighborhood and gettinghigh from smoking marijuana when they came upon the complainant's home, where thecodefendant decided to relieve himself in the driveway. According to the defendant's testimony,the codefendant went around to the back of the house and the defendant went back there when heheard banging from behind the house. The defendant saw the codefendant banging on the backdoor. As they were standing there, with the codefendant banging on the door, it opened, they sawthe complainant, and they ran away.
Under the facts adduced at trial, there was no direct evidence of the defendant's intent at thetime he stood by the doorway. Although the jury could infer a criminal purpose, they were notrequired to do so and they could have reasonably found that the defendant lacked the intent tocommit a crime inside the dwelling (see People v Henderson, 41 NY2d at 237; Peoplev Land, 131 AD2d at 884). The jury could have concluded that the attempted entry was aspontaneous act of mischief on the part of the defendant, who testified that he was high fromsmoking marijuana and went around to the back of the house only after hearing his codefendantbanging on the back door. The jury could have decided that the defendant never intended tocommit a larceny in the complainant's dwelling, but was motivated, instead, by another purpose,such as, for example, "to engage in an act of mischief not larcenous in nature" (People vHenderson, 41 NY2d at 237). Accordingly, we modify the judgment to vacate the convictionof attempted burglary in the second degree and the sentence imposed thereon. Inasmuch as theconviction of attempted burglary in the second degree was, in and of itself, a conviction of alesser-included offense under count one of the indictment, we dismiss that count of theindictment with leave to the People to re-present any appropriate charges to another grand jury(see People v Gonzalez, 61 NY2d 633 [1983]; People v Beslanovics, 57 NY2d726, 727 [1982]; People v Porter, 77AD3d 771, 773 [2010]).
In light of the foregoing, we need not reach the defendant's remaining contention that hissentence for attempted burglary in the second degree was excessive. Skelos, J.P., Leventhal,Austin and Miller, JJ., concur.