Opinion · Appellate Division of the Supreme Court of the State of New York

People v. Melendez

People v. Melendez, 148 A.D.2d 964 (Appellate Division of the Supreme Court of the State of New York 1989)

Type
Opinion
Court
Appellate Division of the Supreme Court of the State of New York
Jurisdiction
New York
Date
1989-03-10
Topic
general

How later courts describe this case

  • not error to refuse to instruct on lesser included offense because no reasonable view of evidence could support finding that building entered by defendant was not dwelling
  • “A dwelling does not lose its character as such merely because its occupant is temporarily absent.”

Citator

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Cited by
5 opinions

Judgment unanimously affirmed. Memorandum: The court’s refusal to strike the answer given by the prosecution’s witness to a leading question was harmless error. The proof of defendant’s guilt of burglary and larceny was overwhelming and there is no significant probability that the verdict would have been different if the answer had been stricken (see, People v Crimmins, 36 NY2d 230, 242).

The court correctly refused to charge burglary in the third degree and criminal trespass in the second and third degrees as lesser included offenses of burglary in the second degree. There was no reasonable view of the evidence by which the *965 jury could have found that defendant unlawfully entered the apartment, but did not intend to commit a crime therein, nor was there any reasonable view of the evidence by which the jury could have found that the apartment defendant unlawfully entered was not a dwelling. A dwelling does not lose its character as such merely because its occupant is temporarily absent (People v Sheirod, 124 AD2d 14, lv denied 70 NY2d 656).

Also lacking merit are defendant’s other objections to the court’s charge. (Appeal from judgment of Wayne County Court, Parenti, J. — burglary, second degree.) Present — Callahan, J. P., Doerr, Boomer, Lawton and Davis, JJ.