Opinion
10-07-2016
The PEOPLE of the State of New York, Respondent, v. Cody WENNER, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
PRESENT: SMITH, J.P., CARNI, LINDLEY, DeJOSEPH, AND SCUDDER, JJ.
MEMORANDUM:
On appeal from a judgment convicting him, upon a jury verdict, of burglary in the second degree (Penal Law § 140.25[2] ), defendant contends that the evidence is legally insufficient to support the conviction because the People failed to establish that he entered the victim's dwelling. We reject that contention. Defendant was charged both as a principal and an accomplice and, to establish defendant's liability as an accomplice, the People were not required to prove that he entered the victim's residence. We conclude that the evidence is legally sufficient to establish defendant's liability as an accomplice inasmuch as he “importuned and intentionally aided [another] in breaking into [the victim's] home with the intent that they commit a crime therein” (People v. Hill, 188 A.D.2d 949, 950, 592 N.Y.S.2d 113 ; see People v. Soto, 216 A.D.2d 337, 337, 628 N.Y.S.2d 155, lv. denied 86 N.Y.2d 803, 632 N.Y.S.2d 516, 656 N.E.2d 615 ). In any event, contrary to defendant's contention, the evidence is legally sufficient to establish defendant's liability as a principal. 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 ), we conclude that there is “ ‘a valid line of reasoning and permissible inferences from which a rational jury’ ” could have found that defendant personally entered the residence and removed the large television that he and his codefendant were seen carrying in the vicinity of the victim's residence shortly before the crime was discovered (People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). In addition, viewing the evidence in light of the elements of the crime as charged to the jury (see Danielson, 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), 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 ).
Finally, we conclude that defendant's waiver of his Antommarchi rights was valid (see People v. Flinn, 22 N.Y.3d 599, 601–602, 984 N.Y.S.2d 283, 7 N.E.3d 496, rearg. denied 22 N.Y.3d 940, 987 N.Y.S.2d 592, 10 N.E.3d 1147 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.