GANGULY BROTHERS, PLLC, ROCHESTER (ANJAN K. GANGULY OF
COUNSEL), FOR DEFENDANT-APPELLANT.
DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CENTRA, CURRAN, AND SCUDDER,
from a judgment of the Supreme Court, Monroe County (Alex R.
Renzi, J.), rendered September 9, 2015. The judgment
convicted defendant, upon a jury verdict, of burglary in the
hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, a new trial is granted, and
the matter is remitted to Supreme Court, Monroe County, for
further proceedings in accordance with the following
memorandum: Defendant appeals from a judgment convicting her
upon a jury verdict of burglary in the first degree (Penal
Law § 140.30 ). The conviction arises from an
incident in which defendant allegedly allowed her brother
into a home in which she resided, whereupon he entered
another resident's bedroom and assaulted that resident.
Viewing the evidence in the light most favorable to the
People (see People v Contes, 60 N.Y.2d 620, 621), we
conclude that the evidence is legally sufficient to support
the conviction (see generally People v Bleakley, 69
N.Y.2d 490, 495). Furthermore, viewing the evidence in light
of the elements of the crime as charged to the jury (see
People v Danielson, 9 N.Y.3d 342, 349), we conclude that
the verdict is not against the weight of the evidence
(see generally Bleakley, 69 N.Y.2d at 495).
agree with defendant, however, that Supreme Court erred in
instructing the jury on the elements of the crime, and we
therefore reverse the judgment and grant a new trial.
Initially, we reject the People's contention that
defendant failed to preserve her contention for our review.
Although the codefendant's attorney made most of the
defense arguments during the charge conference, defense
counsel also objected to the court's proposed charge on
the ground now advanced on appeal. Thus, because defendant
" without success has either expressly or impliedly
sought or requested a particular... instruction, [she] is
deemed to have thereby protested the court's... failure
to... instruct accordingly sufficiently to raise a question
of law with respect to such... failure' "
(People v Medina, 18 N.Y.3d 98, 103-104, quoting CPL
is well settled that, [i]n evaluating a challenged jury
instruction, we view the charge as a whole in order to
determine whether a claimed deficiency in the jury charge
requires reversal' " (People v Walker, 26
N.Y.3d 170, 174). A person is guilty of burglary in the first
degree, in pertinent part, when he or she "knowingly
enters or remains unlawfully in a dwelling with intent to
commit a crime therein" (Penal Law § 140.30 ).
" Dwelling' means a building which is usually
occupied by a person lodging therein at night" (§
140.00 ), and "the definition of building'
includes the following: Where a building consists of two or
more units separately secured or occupied, each unit shall be
deemed both a separate building in itself and a part of the
main building' " (People v McCray, 23
N.Y.3d 621, 626, rearg denied 24 N.Y.3d 947, quoting
§ 140.00 ).
the court instructed the jurors that a "dwelling is a
building which is usually occupied by a person lodging
therein at night. A bedroom in a home, where there is more
than one tenant, may be considered independent of the rest of
the house and may be considered a separate dwelling within a
building." The court, however, failed to include the
part of the definition of building that would require the
jury to determine whether the house at issue consisted of
"two or more units" and whether the bedroom at
issue was a unit that was "separately secured or
occupied" (Penal Law § 140.00 ). Consequently,
"given the omission of the definition of [ unit']
and/or [ separately secured or occupied, '] the
instruction did not adequately convey the meaning of [
building'] to the jury and instead created a great
likelihood of confusion such that the degree of precision
required for a jury charge was not met"
(Medina, 18 N.Y.3d at 104).
further contends that the court erred in denying her motion
to suppress the evidence seized after a sheriff's deputy
stopped her vehicle. Defendant moved to suppress that
evidence and, although the court held a hearing on the motion
and issued findings of fact, it did not issue a ruling on the
motion. The Court of Appeals "has construed CPL 470.15
(1) as a legislative restriction on [this Court's] power
to review issues either decided in an appellant's favor,
or not ruled upon, by the trial court" (People v
LaFontaine, 92 N.Y.2d 470, 474, rearg denied 93
N.Y.2d 849), and thus " the court's failure to rule
on the motion cannot be deemed a denial thereof' "
(People v Dark, 104 A.D.3d 1158, 1159). ...