| People v Huggins |
| 2015 NY Slip Op 09119 [134 AD3d 854] |
| December 9, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Kareem Huggins, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Mark W. Vorkink of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andKeith Dolan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Ozzi, J.), rendered May 23, 2012, convicting him of rape in the first degree (twocounts), criminal sexual act in the first degree, sexual abuse in the first degree (fourcounts), burglary in the first degree as a sexually motivated felony, robbery in the firstdegree as a sexually motivated felony, assault in the second degree as a sexuallymotivated felony, and robbery in the second degree as a sexually motivated felony, upona jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the facts, by vacating the conviction ofburglary in the first degree as a sexually motivated felony, vacating the sentence imposedthereon, and dismissing that count of the indictment; as so modified, the judgment isaffirmed.
The defendant was convicted of two counts of rape in the first degree, among othercrimes, arising out of two incidents: one occurring in October 2008, and one occurring inNovember 2008.
The defendant's contention that the evidence was legally insufficient to establish hisidentity as the perpetrator of the crimes relating to the November 2008 incident isunpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d484, 492 [2008]). In any event, viewing the evidence in the light most favorable tothe prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that itwas legally sufficient to establish the defendant's identity as the perpetrator of thosecrimes beyond a reasonable doubt. Moreover, upon the exercise of our factual reviewpower (see CPL 470.15 [5]), we are satisfied that the verdict of guilt as to thosecounts was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
We agree with the defendant, however, that the verdict of guilt as to the count ofburglary in the first degree as a sexually motivated felony, relating to the October 2008incident, was against the weight of the evidence. To be guilty of burglary in the firstdegree, a person must, among other things, knowingly enter or remain unlawfully in adwelling (see Penal Law § 140.30). Here, while the evidence at trialshowed that the defendant entered the vestibule of the victim's apartment buildingthrough an outer door that did not lock, there was no indicia that access to the building or[*2]vestibule was restricted to tenants. Thus, the weightof the evidence does not warrant a finding that the defendant knowingly entered thevictim's dwelling (see People vTaufiq, 115 AD3d 887, 888-889 [2014]; People v Maisonet, 304 AD2d674, 675 [2003]). Accordingly, we vacate the conviction of burglary in the first degree asa sexually motivated felony, vacate the sentence imposed thereon, and dismiss that countof the indictment (see CPL 470.20 [5]).
The trial court properly permitted the prosecution to argue that the evidence of thedefendant's commission of the crimes relating to the October 2008 incident could beconsidered as evidence of his identity as the perpetrator of the crimes relating to theNovember 2008 incident. The incidents shared sufficiently distinctive circumstances toestablish a modus operandi such that, in her summation, the prosecutor was properlypermitted to comment upon the similarities (see People v Boone, 129 AD3d 1099, 1100 [2015]; People v Currie, 117 AD3d1074, 1075 [2014]; Peoplev Lewis, 101 AD3d 1154 [2012]).
The defendant's remaining contentions either are without merit or need not bereached in light of our determination. Mastro, J.P., Dickerson, Roman and Maltese, JJ.,concur.