People v. Dwyer

Appellate Division of the Supreme Court of New York

People v. Dwyer

56 A.D.2d 658, 392 N.Y.S.2d 48, 1977 N.Y. App. Div. LEXIS 10797

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

DecidedFebruary 28, 1977

StatusPublished

This text of 56 A.D.2d 658 (People v. Dwyer) 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. Dwyer, 56 A.D.2d 658, 392 N.Y.S.2d 48, 1977 N.Y. App. Div. LEXIS 10797 (N.Y. Ct. App. 1977).

Pincite

Opinion

Appeal by defendant from a judgment of the County Court, Nassau County, rendered September 5, 1975, convicting him of attempted burglary in the third degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law and the facts, by reducing the conviction to one of trespass and vacating the sentence imposed. As so modified, judgment affirmed and case remitted to the County Court for resentence. The evidence that the defendant was attempting to unlawfully enter the supermarket with the intent to commit a crime therein was wholly circumstantial and insufficient, as a matter of law, to sustain the conviction. It cannot be said that the evidence "exclude[s] to a moral certainty every other hypothesis except that of the accused’s guilt”, or that "all of the circumstances [are] consistent with and point to the accused’s guilt” (Richardson, Evidence [Prince, 10th ed], § 148). However, since the defendant took the stand and, in effect, admitted the commission of a trespass, we modify the judgment accordingly. We have considered the other contentions raised by defendant and find them to be without merit. Rabin, Acting P. J., Shapiro, Titone and O’Connor, JJ., concur.

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Appeal by defendant from a judgment of the County Court, Nassau County, rendered September 5, 1975, convicting him of attempted burglary in the third degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law and the facts, by reducing the conviction to one of trespass and vacating the sentence imposed. As so modified, judgment affirmed and case remitted to the County Court for resentence. The evidence that the defendant was attempting to unlawfully enter the supermarket with the intent to commit a crime therein was wholly circumstantial and insufficient, as a matter of law, to sustain the conviction. It cannot be said that the evidence "exclude[s] to a moral certainty every other hypothesis except that of the accused’s guilt”, or that "all of the circumstances [are] consistent with and point to the accused’s guilt” (Richardson, Evidence [Prince, 10th ed], § 148). However, since the defendant took the stand and, in effect, admitted the commission of a trespass, we modify the judgment accordingly. We have considered the other contentions raised by defendant and find them to be without merit. Rabin, Acting P. J., Shapiro, Titone and O’Connor, JJ., concur.

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Bluebook (online)

56 A.D.2d 658, 392 N.Y.S.2d 48, 1977 N.Y. App. Div. LEXIS 10797, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-dwyer-nyappdiv-1977.