Opinion
1481 KA 16–01438
02-02-2018
The PEOPLE of the State of New York, Respondent, v. Kevin M. DOWNEY, Defendant–Appellant.
THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.
THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CARNI, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the first degree ( Penal Law § 140.30 [2 ] ). The charges arose from allegations that he entered a home in which his sister resided, then entered another resident's bedroom and assaulted that resident. Contrary to defendant's contention, viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we conclude that the evidence is legally sufficient to support the conviction (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). 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, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Defendant contends that reversal is required because the jury convicted him based on a theory that differs from the one set forth in the indictment as limited by the bill of particulars. Although defendant did not raise that contention in Supreme Court and thus did not preserve it for our review, we conclude that "preservation is not required" ( People v. Greaves, 1 A.D.3d 979, 980, 767 N.Y.S.2d 530 [4th Dept. 2003] ), inasmuch as "defendant has a fundamental and nonwaivable right to be tried only on the crimes charged" in the indictment as limited by the bill of particulars ( People v. Duell, 124 A.D.3d 1225, 1226, 999 N.Y.S.2d 288 [4th Dept. 2015], lv denied 26 N.Y.3d 967, 18 N.Y.S.3d 603, 40 N.E.3d 581 [2015] [internal quotation marks omitted]; see People v. Sanford, 148 A.D.3d 1580, 1582, 51 N.Y.S.3d 728 [4th Dept. 2017], lv denied 29 N.Y.3d 1133, 64 N.Y.S.3d 683, 86 N.E.3d 575 [2017] ). Nevertheless, defendant's contention is without merit. Defendant, in essence, contends that, because of variances between the evidence at trial and the allegations in the indictment as limited by the bill of particulars, the indictment failed to fulfill two of the primary functions of an indictment, i.e., to provide "defendant with fair notice of the accusations made against him, so that he will be able to prepare a defense," and "to provide some means of ensuring that the crime for which the defendant is brought to trial is in fact one for which he was indicted by the Grand Jury, rather than some alternative seized upon by the prosecution in light of subsequently discovered evidence" ( People v. Iannone, 45 N.Y.2d 589, 594, 412 N.Y.S.2d 110, 384 N.E.2d 656 [1978] ; see People v. Rivera, 84 N.Y.2d 766, 769, 622 N.Y.S.2d 671, 646 N.E.2d 1098 [1995] ; see also Russell v. United States, 369 U.S. 749, 770, 82 S.Ct. 1038, 8 L.Ed.2d 240 [1962] ). Here, however, we conclude that the indictment and bill of particulars provided defendant with "fair notice of the accusations made against him, so that he [was] able to prepare a defense" ( Iannone, 45 N.Y.2d at 594, 412 N.Y.S.2d 110, 384 N.E.2d 656 ; see People v. Grega, 72 N.Y.2d 489, 495, 534 N.Y.S.2d 647, 531 N.E.2d 279 [1988] ; People v. Dawson, 79 A.D.3d 1610, 1611, 913 N.Y.S.2d 592 [4th Dept. 2010], lv denied 16 N..Y3d 894, 926 N.Y.S.2d 30, 949 N.E.2d 978 [2011] ), and there is no possibility that defendant was convicted of a crime that was not charged by the grand jury (cf. People v. Graves, 136 A.D.3d 1347, 1349, 25 N.Y.S.3d 477 [4th Dept. 2016], lv denied 27 N.Y.3d 1069, 38 N.Y.S.3d 840, 60 N.E.3d 1206 [2016] ).
Defendant further contends that the court erred in instructing the jury on the elements of the crime. We agree, and we therefore reverse the judgment and grant a new trial. As we determined on the appeal of the codefendant, "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[2] ). 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’ " ( People v. Pritchard, 149 A.D.3d 1479, 1480, 52 N.Y.S.3d 595 [4th Dept. 2017] ). Because "defendant raises claims identical to those raised by the codefendant on [her] appeal, which claims required reversal in that case ..., we conclude that ... defendant's judgment of conviction must be reversed" ( People v. Sanchez, 304 A.D.2d 677, 677, 757 N.Y.S.2d 490 [2d Dept. 2003] ; see generally People v. Rodriquez, 299 A.D.2d 875, 875, 749 N.Y.S.2d 751 [4th Dept. 2002] ; People v. Catalano, 124 A.D.2d 304, 304, 507 N.Y.S.2d 1020 [3d Dept. 1986] ).
In light of our determination, we do not address defendant's remaining contentions.
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted.