Opinion
March 16, 1971
Appeal from a judgment of the County Court of Washington County, rendered February 16, 1970 upon a verdict convicting defendant of the crime of burglary in the third degree. The defendant was indicted by the Grand Jury of the County of Washington for the crime of burglary in the third degree and was found "guilty as charged". Mr. Zolnik was the owner of a two-story building, the ground floor of which was used for a restaurant and grill, the upstairs occupied as living quarters. On November 5, 1969 his dog started barking and he heard banging in the downstairs part of the house. There had been a power shortage and he took his flashlight and proceeded down to the restaurant where he found the defendant behind the bar who, upon seeing Mr. Zolnik, ran from the premises. Upon further examination the witness found a broken door and window in the basement of the house and a cash box in the rear of the bar had been opened, but apparently the contents were not removed. The police officer who arrested the defendant upon further investigation found the broken window and the latch on the cellar door broken. The sister of the defendant testified that at the time of the alleged break — from about 5:00 P.M. until midnight — the defendant had been in her company. The court charged the jury that the defendant could be found guilty of burglary or of criminal trespass in the first, second or third degree. The issues raised by the appellant are without merit. There was no justifiable reason why the District Attorney should become a witness on behalf of the defendant, assuming that he was subject to being called under any circumstances. There was no abuse of the court's discretion in denying the defendant's motion to reserve his opening statement until after the People rested and there appears to be no reason why the court should have charged the jury as to this aspect of the case. This was not a long involved action. The issue involved was relatively simple and the question as to defendant's guilt as to the crime charged in the indictment, or a lesser charge, was fairly submitted to the jury. From an examination of the record we find no errors of substance nor were there any violations of the rights of the defendant under the State or Federal Constitutions. Judgment affirmed. Herlihy, P.J., Reynolds, Greenblott, Cooke and Simons, JJ., concur.