| People v Ortiz |
| 2019 NY Slip Op 01798 [170 AD3d 892] |
| March 13, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Dillon Ortiz, Appellant. |
Murray Richman, Bronx, NY (Stacey Richman of counsel), for appellant.
Kevin P. Gilleece, Acting District Attorney, New City, NY (Tina L. Guccione of counsel),for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Rockland County (WilliamA. Kelly, J.), rendered April 14, 2016, convicting him of burglary in the first degree and burglaryin the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the conviction of burglary inthe second degree, vacating the sentence imposed thereon, and dismissing that count of theindictment; as so modified, the judgment is affirmed.
The defendant failed to preserve for appellate review his challenge to the legal sufficiency ofthe intent element of burglary in the first degree (see CPL 470.05 [2]). In any event,viewing the evidence in the light most favorable to the prosecution (see People v Contes,60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish the defendant's guiltof burglary in the first degree beyond a reasonable doubt. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (see CPL470.15 [5]; People v Danielson, 9NY3d 342, 348 [2007]), we nevertheless accord great deference to the jury's opportunity toview the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2NY3d 383 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing therecord here, we are satisfied that the verdict of guilt as to burglary in the first degree was notagainst the weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
The defendant was not entitled to a missing witness charge with respect to one of the victims.The People showed that the victim could not be located despite diligent police efforts, therebyestablishing his unavailability to testify (see People v Savinon, 100 NY2d 192, 198[2003]; People v Jonas, 18 AD3d778 [2005]; People v Bryant,11 AD3d 630, 631 [2004]; People v Flowers, 275 AD2d 329, 330 [2000]).
The defendant correctly contends that his conviction of burglary in the second degree(see Penal Law § 140.25 [2]) must be vacated since that count is a lesserincluded offense of the crime of burglary in the first degree (see Penal Law§ 140.30 [2]; see alsoPeople v Ali, 89 AD3d 1417, 1418 [2011]; People v Coleman, 82 AD3d 1593, 1595 [2011]; People v Beverly, 35 AD3d 754[2006]; People v Boone, 269 AD2d 459, 460 [2000]).
The defendant's remaining contentions are without merit. Rivera, J.P., Balkin, Maltese andBarros, JJ., concur.