People v Francis (Norman)

[*1] People v Francis (Norman) 2015 NY Slip Op 51380(U) Decided on September 29, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 29, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Ling-Cohan, JJ.
571038/13

The People of the State of New York, Respondent,

against

Norman Francis, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (James M. Burke, J.), rendered September 12, 2013, after a nonjury trial, convicting him of criminal trespass in the third degree, and imposing sentence.

Per Curiam.

Judgment of conviction (James M. Burke, J.), rendered September 12, 2013, affirmed.

Defendant's claim that the evidence was legally insufficient to support the conviction for third-degree criminal trespass because his conduct was justified under the "choice of evil" theory of Penal Law § 35.05(2) is unpreserved for appellate review (see People v LaPetina, 9 NY3d 854, 855 [2007], rearg. denied 13 NY3d 855 [2009]), and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. Assuming, arguendo, that the scenario alleged by defendant constitutes a reasonable view of the evidence - that he entered the enclosed "no trespassing," "ticketed passengers waiting area" because he experienced a "stomach cramp," - "nowhere is there any indication in the record that defendant was confronted with imminent harm and faced with an emergency situation, such as to demonstrate that his criminal trespass was justifiable" (People v Craggon, 171 AD2d 523 [1991], lv denied 78 NY2d 921 [1991]; People v Craig, 78 NY2d 616, 623 [1991]; People v Shine, 224 AD2d 306 [1996], lv denied 88 NY2d 853 [1996]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concurI concurI concur
Decision Date: September 29, 2015