People v. Carmel

Appellate Division of the Supreme Court of New York

People v. Carmel

298 A.D.2d 928, 748 N.Y.S.2d 89, 2002 N.Y. App. Div. LEXIS 9141

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 1, 2002

StatusPublished

Cited by7 cases

This text of 298 A.D.2d 928 (People v. Carmel) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Carmel, 298 A.D.2d 928, 748 N.Y.S.2d 89, 2002 N.Y. App. Div. LEXIS 9141 (N.Y. Ct. App. 2002).

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Opinion

—Appeal from a judgment of Supreme Court, Monroe County (Egan, J.), entered June 2 and 5, 2000, convicting defendant of, inter alia, burglary in the second degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him of burglary in the second degree (Penal Law § 140.25 [2]) and other crimes, defendant contends that Supreme Court erred in instructing the jury, with respect to the burglary charge, that “an attached enclosed porch is a part of a dwelling.” We reject that contention. Penal Law § 140.25 (2) provides that a person is guilty of burglary in the second degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein and when the building is a dwelling. Penal Law § 140.00 (3) defines “[d]welling” as a “building which is usually occupied by a person lodging therein at night.” Here, it is undisputed that, at the time of the crime, the porch that defendant entered was locked against intrusion from the outside, was accessible from other areas of the dwelling, was furnished, and was used by the occupants as a den and breakfast room. We therefore conclude that the court did not err in instructing [929]*929the jury that an attached enclosed porch is a part of a dwelling (see People v Lewoc, 101 AD2d 927, 928; cf. People v Buford, 248 AD2d 394, lv denied 92 NY2d 894; People v Monge, 248 AD2d 558, 559, lv denied 92 NY2d 856; People v Santana, 143 AD2d 207).

We reject the further contention that the court erred in denying defendant’s motion for a mistrial based on police testimony that defendant invoked his right to counsel during questioning. The jury is presumed to have followed the court’s curative instructions and to have disregarded the improper testimony (see People v Kimble, 289 AD2d 1062, 1063, lv denied 98 NY2d 638; People v Mims, 278 AD2d 822, 823, lv denied 96 NY2d 832; People v Owens, 214 AD2d 480, 481, lv denied 86 NY2d 799), and the court’s curative instructions thereby eliminated any prejudice to defendant (see People v Brown, 248 AD2d 1017; People v McCray, 227 AD2d 900, 901, lv denied 89 NY2d 866; People v Guise, 179 AD2d 1027, lv denied 79 NY2d 1001). Present — Pigott, Jr., P.J., Green, Hayes, Kehoe and Gorski, JJ.

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—Appeal from a judgment of Supreme Court, Monroe County (Egan, J.), entered June 2 and 5, 2000, convicting defendant of, inter alia, burglary in the second degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him of burglary in the second degree (Penal Law § 140.25 [2]) and other crimes, defendant contends that Supreme Court erred in instructing the jury, with respect to the burglary charge, that “an attached enclosed porch is a part of a dwelling.” We reject that contention. Penal Law § 140.25 (2) provides that a person is guilty of burglary in the second degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein and when the building is a dwelling. Penal Law § 140.00 (3) defines “[d]welling” as a “building which is usually occupied by a person lodging therein at night.” Here, it is undisputed that, at the time of the crime, the porch that defendant entered was locked against intrusion from the outside, was accessible from other areas of the dwelling, was furnished, and was used by the occupants as a den and breakfast room. We therefore conclude that the court did not err in instructing [929]*929the jury that an attached enclosed porch is a part of a dwelling (see People v Lewoc, 101 AD2d 927, 928; cf. People v Buford, 248 AD2d 394, lv denied 92 NY2d 894; People v Monge, 248 AD2d 558, 559, lv denied 92 NY2d 856; People v Santana, 143 AD2d 207).

We reject the further contention that the court erred in denying defendant’s motion for a mistrial based on police testimony that defendant invoked his right to counsel during questioning. The jury is presumed to have followed the court’s curative instructions and to have disregarded the improper testimony (see People v Kimble, 289 AD2d 1062, 1063, lv denied 98 NY2d 638; People v Mims, 278 AD2d 822, 823, lv denied 96 NY2d 832; People v Owens, 214 AD2d 480, 481, lv denied 86 NY2d 799), and the court’s curative instructions thereby eliminated any prejudice to defendant (see People v Brown, 248 AD2d 1017; People v McCray, 227 AD2d 900, 901, lv denied 89 NY2d 866; People v Guise, 179 AD2d 1027, lv denied 79 NY2d 1001). Present — Pigott, Jr., P.J., Green, Hayes, Kehoe and Gorski, JJ.

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Bluebook (online)

298 A.D.2d 928, 748 N.Y.S.2d 89, 2002 N.Y. App. Div. LEXIS 9141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-carmel-nyappdiv-2002.

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