| People v Ayers |
| 2015 NY Slip Op 04139 [128 AD3d 845] |
| May 13, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Michael Ayers, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Tammy Linn of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L.Mandel, and Joyce Adolfsen of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Guzman, J.), rendered June 6, 2013, convicting him of burglary in the second degreeand petit larceny, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that the People failed to present legally sufficient evidenceof his guilt of burglary in the second degree. Contrary to his contention, viewing theevidence in the light most favorable to the prosecution (see People v Contes, 60NY2d 620, 621 [1983]), the evidence was legally sufficient to establish that theapartment unlawfully entered by the defendant was a dwelling within the meaning ofPenal Law § 140.00 (3) at the time of the burglary (see Penal Law§ 140.25 [2]; People v McCray, 23 NY3d 621, 630 [2014]; People vBarney, 99 NY2d 367, 370-371 [2003]; People v Henry, 64 AD3d 804, 805 [2009]; People vAbarrategui, 306 AD2d 20, 21 [2003]). Moreover, upon the exercise of our factualreview power (see CPL 470.15 [5]), we are satisfied that the verdict of guilt as tothe count of burglary in the second degree was not against the weight of the evidence (see People v Romero, 7 NY3d633, 644-645 [2006]).
Furthermore, because there was no reasonable view of the evidence that theapartment at issue was not a dwelling within the meaning of the Penal Law, the SupremeCourt properly refused to charge the lesser included offense of burglary in the thirddegree (see CPL 300.50 [1]; People v Barney, 99 NY2d at 371-373;People v Sheirod, 124 AD2d 14 [1987]). Rivera, J.P., Dickerson, Cohen andBarros, JJ., concur.