| People v Ross |
| 2013 NY Slip Op 08668 [112 AD3d 972] |
| December 26, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Oliver Ross, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Nicoletta J. Caferri, and Emil Bricker of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Holder, J.), rendered February 17, 2011, convicting him of burglary in the seconddegree, resisting arrest, and criminal mischief in the fourth degree, upon a jury verdict,and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the conviction ofcriminal mischief in the fourth degree and the sentence imposed thereon, and dismissingthat count of the indictment; as so modified, the judgment is affirmed.
On December 2, 2009, at around 4:00 a.m., a resident of Queens County saw anintruder trying to break into a neighboring house through its front window, in whichthere was an air conditioner, and summoned the police. The former resident homeownerhad recently relocated to a nursing home, leaving the house in a neat and orderlycondition. When the police arrived in response to a 911 emergency call, they found thefront window broken, the air conditioner on the floor of the living room, and the house indisarray. On the second floor, they found the defendant under a bed.
At trial, the Supreme Court properly admitted arrest photographs of the defendantinto evidence to clarify a disputed issue regarding his appearance on the night of hisarrest (see People vMcNeil, 63 AD3d 551 [2009]; People v Smith, 254 AD2d 192 [1998]).Contrary to the defendant's contention, he was not excluded from the discussion betweenthe court and counsel regarding the admission of these photographs into evidence(see People v Roman, 88 NY2d 18, 27 [1996]; People v Torres, 61 AD3d489 [2009]). The court also properly allowed into evidence the tape recording of the911 call, which reported the intrusion as a present sense impression and was sufficientlycorroborated by the testimony at trial of the caller and the police officers who respondedto the 911 call (see People v Brown, 80 NY2d 729, 734 [1993]; People vRobinson, 282 AD2d 75, 82 [2001]).
The Supreme Court's Sandoval ruling (see People v Sandoval, 34NY2d 371 [1974]) struck an appropriate balance between the probative value ofallowing inquiry into certain of the defendant's prior convictions against the prejudice tothe defendant resulting from that inquiry (see People v Cruz, 21 AD3d 967 [2005]; People vClarke, 265 AD2d 566 [1999]).
Although use of the term "conspiracy" to characterize the defense is disapproved,this and other comments made by the prosecutor on summation were in response todefense counsel's [*2]summation or were rhetoricalcomments which did not deprive the defendant of a fair trial (see People v Hayes, 48 AD3d831 [2008]; People v Colonna, 135 AD2d 724 [1987]; People vCowan, 111 AD2d 343, 345 [1985]).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), the defendant's guilt of burglary in the seconddegree was established by legally sufficient evidence (see Penal Law §140.25 [2]). Moreover, in fulfilling our responsibility to conduct an independent reviewof the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe their demeanor (see People vMateo, 2 NY3d 383 [2004], cert denied 542 US 946 [2004]). Uponreviewing the record here, we are satisfied that the verdict of guilt of burglary in thesecond degree was not against the weight of the evidence (see People v Romero, 7 NY3d633, 643 [2006]).
For a defendant to be found guilty of criminal mischief in the fourth degree, thePeople must prove that the defendant intentionally damaged the property of anotherperson without either the right to do so or reasonable grounds to believe that he or shehad such a right (see Penal Law § 145.00 [1]; People v Hills, 95NY2d 947, 948 [2000]). Here, the indictment charged that the defendant intentionallydamaged the homeowner's air conditioner. However, there was no proof adduced at trialof damage to the air conditioner. Accordingly, the defendant's conviction of criminalmischief in the fourth degree and the sentence imposed thereon must be vacated, and thatcount of the indictment must be dismissed (see People v Harris, 72 AD3d 1110 [2010]; People v Mingo, 66 AD3d1043 [2009]).
The defendant's contention with respect to the Supreme Court's instruction to the juryregarding the charge of criminal mischief in the fourth degree has been renderedacademic in light of our determination. Rivera, J.P., Dillon, Chambers and Hinds-Radix,JJ., concur.