| People v Moreno |
| 2020 NY Slip Op 05468 [187 AD3d 449] |
| October 6, 2020 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Bryan Moreno, Appellant. |
Law Offices of Albert Y. Dayan, Kew Gardens (Albert Y. Dayan of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jennifer Westphal counsel), forrespondent.
Judgment, Supreme Court, New York County (Michele S. Rodney, J.), rendered April 10,2019, convicting defendant, after a jury trial, of burglary in the first degree, assault in the secondand third degrees, and strangulation in the second degree, and sentencing him to an aggregateterm of 10 years, unanimously affirmed.
Evidence of defendant's prior abusive conduct toward the victim was properly admitted asproof of his intent in entering her apartment, and to provide context regarding the nature of theirrelationship (see People v Dorm, 12NY3d 16 [2009]; People vGreene, 162 AD3d 415, 415 [1st Dept 2018], lv denied 31 NY3d 1148 [2018]).The probative value of this evidence outweighed any prejudicial effect, which was minimized bythe court's limiting instruction.
The court properly denied defendant's request to submit second-degree criminal trespass tothe jury as a lesser included offense of first-degree burglary, because there was no reasonableview of the evidence that defendant entered the victim's apartment unlawfully, but without intentto commit a crime. The victim testified that defendant entered the apartment unlawfully for thepurpose of taking violent revenge against her, and defendant testified that he entered theapartment lawfully. There was no way for the jury to find that defendant was inside the apartmentunlawfully, but had no intent to commit a crime, without selectively dissecting the respectivetestimony or speculating as to a scenario not supported by any evidence (see generally People v Rivera, 23NY3d 112, 120-121 [2014]).
The court also properly denied defendant's request to submit third-degree assault as a lesserincluded offense of second-degree assault, because there is no reasonable view of the evidencethat defendant injured the victim without using a dangerous instrument. Although defendantsuggests that the injury in question could have been caused when he punched the victim with hisbare hands, the injury was a forehead laceration that could not have been caused by a punch.
The trial court also properly denied defendant's request to submit criminal obstruction ofbreathing or blood circulation as a lesser included offense of second-degree strangulation,because there is no reasonable view of the evidence that he applied pressure to the victim's neckwithout thereby causing physical injury.
Defendant did not preserve any of his arguments concerning the timing of the court's limitinginstruction on uncharged crimes, the court's explanation of the elements of burglary, or theprosecutor's summation, and we decline to review them in the interest of justice. As analternative holding, we also reject them on the merits. Concur—Friedman, J.P., Webber,Kern, Moulton, JJ.