| People v Taufiq |
| 2014 NY Slip Op 01778 [115 AD3d 887] |
| March 19, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Mujaahid Taufiq, Appellant. |
—[*1] Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County(Rooney, J.), rendered November 14, 2011, convicting him of burglary in the firstdegree, attempted assault in the second degree, and assault in the third degree, upon ajury verdict, and imposing sentence.
Ordered that the judgment is modified, on the facts, by vacating the conviction ofburglary in the first degree under count one of the indictment, vacating the sentenceimposed thereon, and dismissing that count of the indictment; as so modified, thejudgment is affirmed.
As relevant hereto, a person may be found guilty of burglary in the first degree whenhe or she "knowingly enters or remains unlawfully in a dwelling with intent to commit acrime therein" (Penal Law § 140.30; see People v Graves, 76 NY2d 16, 20[1990]). "A person 'enters or remains unlawfully' in or upon premises when he [or she] isnot licensed or privileged to do so" (Penal Law § 140.00 [5]; see People v Aveni, 100 AD3d228, 242 [2012]). "[An] intruder must be aware of the fact that he [or she] has nolicense or privilege to enter the premises" (People v Uloth, 201 AD2d 926, 926[1994] [internal quotation marks omitted]; see People v Aveni, 100 AD3d at 242;People v Reed, 121 AD2d 574, 575 [1986]). "Thus, a person who mistakenlybelieved that he [or she] was licensed or privileged to enter a building, would not beguilty of burglary, even though he [or she] entered with intent to commit a crime therein"(People v Uloth, 201 AD2d at 926 [internal quotation marks omitted]; seePeople v Reed, 121 AD2d at 575; People v Dombrowski, 87 AD3d 1267, 1268 [2011]).
Upon the exercise of our factual review power (see CPL 470.15), we findthat the jury's verdict as to burglary in the first degree was against the weight of theevidence. If, based on all the credible evidence, a different finding would not have beenunreasonable, then we are required to weigh the relative probative force of conflictingtestimony and the relative strength of conflicting inferences that may be drawn from thetestimony (see People v Bleakley, 69 NY2d 490, 495 [1987]). If it appears thatthe trier of fact has failed to give the evidence the weight it should be accorded, then we[*2]may set aside the verdict (see id.; Peopleex rel. MacCracken v Miller, 291 NY 55, 62 [1943]). Applying this standard ofreview to the proof adduced at the defendant's trial, an acquittal on the charge of burglaryin the first degree that was submitted to the jury would not have been unreasonable basedupon the evidence presented and, moreover, the jury failed to accord the evidence on thisissue the weight it should have been accorded (see People v Romero, 7 NY3d 633 [2006]).
The jury's finding that the defendant knowingly entered or remained unlawfully inthe dwelling is against the weight of the evidence. Specifically, the weight of theevidence does not support a finding that the defendant entered the victim's dwelling.Instead, he remained in the vestibule area and used a ruse to lure the victim out of hisapartment. Although the victim testified that the vestibule was part of his living area, thisevidence was insufficient to establish that the defendant knew he entered or remainedunlawfully in the area of the victim's dwelling. The physical layout of the vestibule areaincluded a glass front entry door which was formerly a storefront. The door had stickersaffixed bearing the names of credit card companies and an alarm company. There was nointercom or buzzer, and there was no "no trespassing" sign posted. The vestibule itselfhad utility meters, which are often in publicly accessible spaces, and a police officertestified that the vestibule was completely free of personal items.
Moreover, the victim's testimony that he always locked the glass front entry door isinsufficient to establish that it was locked at the time of the incident, especially in light ofhis testimony that the landlord also had a key (see People v Krevoff, 11 AD2d1053 [1960] [evidence insufficient to establish locked door where apartment owner hadgiven her son permission to enter her apartment by obtaining key from super, and neithersuper nor son were called to testify]). The victim also testified that he never asked thedefendant how he entered the vestibule and never asked the defendant to leave thevestibule. A police officer testified that there was no evidence that the front entry doorhad been tampered with or that the lock had been broken.
As the jury's finding that the defendant knowingly entered or remained unlawfully ina dwelling is against the weight of the evidence, an essential element of the crime wasnot proved beyond a reasonable doubt. Accordingly, we vacate the defendant'sconviction of burglary in the first degree under count one of the indictment, vacate thesentence imposed thereon, and dismiss that count of the indictment (see CPL470.20 [5]).
The defendant's remaining contentions are without merit. Mastro, J.P., Dillon,Leventhal and Duffy, JJ., concur.