People v Carter

People v Carter 2013 NY Slip Op 07340 Released on November 8, 2013 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Released on November 8, 2013
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ.
1098 KA 09-01279

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

VERNON L. CARTER, DEFENDANT-APPELLANT.


Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), rendered May 21, 2009. The judgment convicted defendant, upon a jury verdict, of burglary in the second degree.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF COUNSEL), FOR DEFENDANT-APPELLANT.
VERNON L. CARTER, DEFENDANT-APPELLANT PRO SE.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF COUNSEL), FOR RESPONDENT.


It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of burglary in the second degree (Penal Law § 140.25 [2]). County Court properly denied defendant's request to charge criminal trespass in the second degree (§ 140.15 [1]) as a lesser included offense of burglary in the second degree because "[t]here is no reasonable view of the evidence that defendant entered the building without the intent to commit a crime therein" (People v Smith, 12 AD3d 1106, 1107, lv denied 4 NY3d 767; see People v Rickett, 94 NY2d 929, 930). Furthermore, viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349), we reject defendant's contention that the verdict is against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495). To the contrary, "[t]he overwhelming weight of the evidence supports the [verdict convicting defendant] of burglary in the second degree" (People v Moore, 190 AD2d 1023, 1023, lv denied 81 NY2d 1077). We have considered defendant's contentions in his pro se supplemental brief and conclude that they are without merit.
Entered: November 8, 2013
Frances E. Cafarell
Clerk of the Court