| People v Green |
| 2013 NY Slip Op 02697 [105 AD3d 611] |
| April 23, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Michael Green, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), forrespondent.
Judgment, Supreme Court, New York County (Lewis Bart Stone, J.), renderedOctober 19, 2009, convicting defendant, after a jury trial, of burglary in the seconddegree, and sentencing him, as a persistent violent felony offender, to a term of 20 years,unanimously affirmed.
Defendant was not prejudiced by the fact that the indictment charged him with bothentering and remaining unlawfully, and by the court and prosecutor's references to thesemutually exclusive theories of burglary (see People v Gaines, 74 NY2d 358[1989]) at early stages of the trial. The court's final instructions conveyed the correctelements of second-degree burglary under a theory of unlawful entry only. Furthermore,it was clear from the evidence that the People were proceeding under a theory ofunlawful entry, not a theory of unlawful remaining, under which "a defendant must haveentered legally, but remain for the purpose of committing a crime after authorization tobe on the premises terminates" (id. at 363). Given the evidence and the court'sinstructions, there is no reasonable possibility that the jury convicted defendant under animproper theory that he entered the victims' apartment unlawfully, but without criminalintent, and then formed such an intent while in the apartment (see e.g. People vAgrelo-Travieso, 257 AD2d 514, 515 [1999], lv denied 93 NY2d 870[1999]).
Defendant's argument that the submission of two theories of second-degree burglaryto the grand jury impaired the integrity of the proceeding is unpreserved and we declineto review it in the interest of justice. Defendant's generalized reference to grand juryinstructions in his pretrial omnibus motion was insufficient to preserve this claim (seePeople v Brown, 81 NY2d 798 [1993]). Moreover, defendant had an opportunity tochallenge the grand jury instructions when the entering/remaining issue came up at trial,but he did not do so. As an alternative holding, we reject it on the merits. Theprosecutor's reading of the relevant statutory provisions was sufficient to enable thegrand jury to determine whether a crime was committed and whether legally sufficientevidence existed to establish the material elements of that crime (see People vCalbud, Inc., 49 NY2d 389, 394-396 [1980]; People v Scott, 175 AD2d 625,626 [4th Dept 1991], lv denied 78 NY2d 1130 [1991]).
Those portions of the prosecutor's summation to which defendant objected, duringthe [*2]summation itself, as burden-shifting wereconstitutionally permissible comments on the evidence in response to defense arguments,and the court properly exercised its discretion in denying defendant's mistrial motion.Defendant's remaining challenges to the prosecutor's summation, as well as hischallenges to the court's responses to inquiries from the deliberating jury, areunpreserved (see People vRomero, 7 NY3d 911, 912 [2006]; see also People v Padro, 75 NY2d820 [1990]) and we decline to review them in the interest of justice. As an alternativeholding, we also reject them on the merits.
We have considered and rejected defendant's arguments concerning his motion tosuppress identification testimony (see e.g. People v Ramos, 261 AD2d149 [1st Dept 1999], lv denied 93 NY2d 1025 [1999]), and his claim that he wasentitled to a pretrial determination of whether his statements to police could be used toimpeach him should he choose to testify (see People v Whitney, 167 AD2d 254[1st Dept 1990], lv denied 77 NY2d 912 [1991]). Concur—Gonzalez, P.J.,Mazzarelli, Moskowitz, Renwick and Manzanet-Daniels, JJ.