| People v Dombrowski |
| 2011 NY Slip Op 06661 [87 AD3d 1267] |
| September 30, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jeffrey R.Dombrowski, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Donna A. Milling of counsel), forrespondent.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in theFourth Judicial Department, from an order of the Erie County Court (Michael F. Pietruszka, J.),entered December 3, 2009. The order denied the CPL article 440 motion of defendant.
It is hereby ordered that the case is held, the decision is reserved and the matter is remitted toErie County Court for further proceedings in accordance with the following memorandum:Defendant appeals from an order summarily denying his motion pursuant to CPL 440.10 and440.20 seeking to vacate the judgment convicting him upon a nonjury verdict of, inter alia,burglary in the second degree (Penal Law § 140.25 [2]) and to set aside the sentence. ThisCourt previously affirmed the judgment of conviction (People v Dombrowski, 55 AD3d 1358 [2008], lv denied 11NY3d 924 [2009]). We note at the outset that defendant does not raise any contention concerningthe denial of that part of his motion seeking to set aside the sentence, and we thus deem anyissues with respect thereto abandoned (see generally People v Bradley, 83 AD3d 1444, 1445 [2011]).
Defendant contends that he was denied effective assistance of counsel based on the failure ofhis trial counsel to call various witnesses who allegedly would have testified that they observeddefendant leaving and entering the apartment in question on a regular basis. According todefendant, they also would have testified that they observed him accessing the apartment withkeys and bringing groceries into the apartment. The complainant, who was the mother ofdefendant's child, testified that, at the time of the alleged burglary, her romantic relationship withdefendant had ended. She admitted, however, that she had taken two vacations with defendantwithin the month preceding the alleged burglary and that defendant had occasionally spent thenight at the apartment since the romantic relationship ended.
In order for a factfinder to convict a defendant of burglary in the second degree, the Peopleare required to establish that the defendant knowingly entered or remained unlawfully in adwelling with the intent to commit a crime therein (Penal Law § 140.25 [2]). "A person'enters or remains unlawfully' in or upon premises when he [or she] is not licensed or privilegedto do so" (§ 140.00 [5]). "In general, a person is 'licensed or privileged' to enter privatepremises when he [or she] has obtained the consent of the owner or another whose relationship tothe [*2]premises gives him [or her] authority to issue suchconsent" (People v Graves, 76 NY2d 16, 20 [1990]; see People v Dale, 224AD2d 917 [1995]). Here, the testimony of the witnesses in question would have supported thedefense theory that defendant did not enter the apartment unlawfully. Contrary to the contentionof the People, defendant was not required to establish that he actually resided at the apartment."[T]he intruder must be aware of the fact that he [or she] has no license or privilege to enter thepremises . . . Thus, a person who mistakenly believed that he [or she] was licensedor privileged to enter a building[ ] would not be guilty of burglary, even though he [or she]entered with intent to commit a crime therein" (People v Uloth, 201 AD2d 926, 926[1994] [internal quotation marks omitted]; see People v Insogna, 86 AD2d 979 [1982];cf. People v Bull, 136 AD2d 929 [1988], lv denied 71 NY2d 966 [1988]).
It is well established that "the failure to investigate or call exculpatory witnesses may amountto ineffective assistance of counsel" (People v Nau, 21 AD3d 568, 569 [2005]; see People v Mosley, 56 AD3d1140 [2008]; People v Bussey,6 AD3d 621, 623 [2004], lv denied 4 NY3d 828 [2005]), but it is also wellestablished that "trial tactics [that] terminate unsuccessfully do not automatically indicateineffectiveness" (People v Baldi, 54 NY2d 137, 146 [1981]). Here, defendant submittedthe affidavits of the witnesses in question setting forth the substance of their proposed testimony,as well as their willingness to testify (cf.People v Ozuna, 7 NY3d 913, 915 [2006]). Two of those witnesses were actuallypresent in the courthouse during defendant's trial. From this record, we can discern no tacticalreason for trial counsel's failure to call those witnesses to testify (see People v Castricone,224 AD2d 1019 [1996]; see also Bussey, 6 AD3d at 623; cf. People v Brooks,283 AD2d 367 [2001], lv denied 96 NY2d 916 [2001]). Thus, a hearing is required toafford defendant's trial counsel an opportunity to explain the reason that he chose not to callthose witnesses " 'or to provide a tactical explanation for the omission' " (Mosley, 56AD3d at 1141; see e.g. Nau, 21 AD3d at 569; People v Coleman, 10 AD3d 487 [2004]). We therefore hold thecase, reserve decision and remit the matter to County Court for a hearing on that issue.Present—Scudder, P.J., Centra, Fahey, Green and Gorski, JJ.