People v. Lafond

213 A.D.2d 678, 624 N.Y.S.2d 951

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 27, 1995
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Egitto, J.), rendered December 14, 1992, convicting him of murder in the second degree and burglary in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that the People’s case rested solely on the theory that he had unlawfully entered into a dwelling, and thus it was reversible error for the court to charge the portion of Penal Law § 140.30 which imposes liability for "remaining] unlawfully” there (see, People v Gaines, 74 NY2d 358). This contention is unpreserved for appellate review (see, CPL 470.05 [2]; People v Lipton, 54 NY2d 340; People v Crum, 175 AD2d 136).

In any event, the defendant’s contention is without merit. Since the evidence permitted the jury to infer guilt under either theory, unlawful entry or unlawful remaining, the trial court properly charged the jury that it could determine guilt under either theory. Bracken, J. P., O’Brien, Santucci and Florio, JJ., concur.