Robert C. Mitchell, Riverhead, N.Y. (Kirk R. Brandt of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Edward A. Bannan and Marcia R. Kucera of counsel), for respondent.
DANIEL D. ANGIOLILLO, J.P., CHERYL E. CHAMBERS, L. PRISCILLA HALL, SHERI S. ROMAN, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Suffolk County (Efman, J.), rendered January 14, 2009, convicting him of burglary in the third degree and criminal trespass in the third degree, after a nonjury trial, and imposing sentence.
ORDERED that the judgment is modified, on the law, by vacating the conviction of burglary in the third degree and vacating the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Suffolk County, for a new trial on that charge.
Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15; People v Danielson, 9 N.Y.3d 342), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 N.Y.3d 633).
However, for the reasons stated in our decision on the codefendant's appeal (see People v Klem, 80 A.D.3d 777), the determination to quash a subpoena served upon a defense witness deprived the defendant of his constitutional right to present a defense to the charge of burglary in the third degree. Accordingly, that conviction and the sentence imposed thereon must be vacated, and the matter remitted to the County Court, Suffolk County, for a new trial on that charge.
The defendant's remaining contentions either are without merit or need not be reached in ...