People v. Nigro

225 A.D.2d 1044, 639 N.Y.2d 222, 639 N.Y.S.2d 222, 1996 N.Y. App. Div. LEXIS 2868

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 8, 1996
• Status: Published

Opinion

Memorandum: We reject the contention of defendant that his conviction of burglary in the second degree following a nonjury trial is based on legally insufficient evidence and is against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495). The resolution of credibility is for the trier of fact {see, People v Sutton, 108 AD2d 942; People v La Borde, 76 AD2d 869). We further reject the contention that defendant was denied a fair trial because County Court "deprived” defense counsel of the opportunity to give a summation. Defense counsel did not request an opportunity to give a summation (see generally, People v Parker, 118 AD2d 598, lv denied 67 NY2d 1055). Moreover, immediately before resting his case, defense counsel moved to dismiss the indictment on the ground that the People failed to prove defendant’s guilt beyond a reasonable doubt. Under those circumstances, defendant was not denied a fair trial when the court rendered its verdict without defense counsel having given a summation. Neither was defendant denied a fair trial by the failure of the court to advise defense counsel of the lesser included offenses it would consider. The record shows that the court considered criminal trespass as a lesser included offense at defense counsel’s request. (Appeal from Judgment of Erie County Court, Rogowski, J. — Burglary, 2nd Degree.) Present — Pine, J. P., Lawton, Fallon, Callahan and Doerr, JJ.