Opinion
2016–06057 Ind.No. 15–00107
03-13-2019
The PEOPLE, etc., Respondent, v. Dillon ORTIZ, Appellant.
Murray Richman, Bronx, N.Y. (Stacey Richman of counsel), for appellant. Kevin P. Gilleece, Acting District Attorney, New City, N.Y. (Tina L. Guccione of counsel), for respondent.
Murray Richman, Bronx, N.Y. (Stacey Richman of counsel), for appellant.
Kevin P. Gilleece, Acting District Attorney, New City, N.Y. (Tina L. Guccione of counsel), for respondent.
REINALDO E. RIVERA, J.P., RUTH C. BALKIN, JOSEPH J. MALTESE, BETSY BARROS, JJ.
DECISION & ORDERORDERED that the judgment is modified, on the law, by vacating the conviction of burglary in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
The defendant failed to preserve for appellate review his challenge to the legal sufficiency of the intent element of burglary in the first degree (see CPL 470.05[2] ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of burglary in the first degree beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson , 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo , 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt as to burglary in the first degree was not against the weight of the evidence (see People v. Romero , 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant was not entitled to a missing witness charge with respect to one of the victims. The People showed that the victim could not be located despite diligent police efforts, thereby establishing his unavailability to testify (see People v. Savinon , 100 N.Y.2d 192, 198, 761 N.Y.S.2d 144, 791 N.E.2d 401 ; People v. Jonas , 18 A.D.3d 778, 795 N.Y.S.2d 704 ; People v. Bryant , 11 A.D.3d 630, 631, 784 N.Y.S.2d 114 ; People v. Flowers , 275 A.D.2d 329, 330, 711 N.Y.S.2d 835 ).
The defendant correctly contends that his conviction of burglary in the second degree (see Penal Law § 140.25[2] ) must be vacated since that count is a lesser included offense of the crime of burglary in the first degree (see Penal Law § 140.30[2] ; see also People v. Ali , 89 A.D.3d 1417, 1418, 932 N.Y.S.2d 616 ; People v. Coleman , 82 A.D.3d 1593, 1595, 919 N.Y.S.2d 651 ; People v. Beverly , 35 A.D.3d 754, 825 N.Y.S.2d 767 ; People v. Boone , 269 A.D.2d 459, 460, 704 N.Y.S.2d 265 ).
The defendant's remaining contentions are without merit.
RIVERA, J.P., BALKIN, MALTESE and BARROS, JJ., concur.