People v. Osorio

Appellate Division of the Supreme Court of New York

People v. Osorio

308 A.D.2d 376, 764 N.Y.S.2d 355, 2003 N.Y. App. Div. LEXIS 9563

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

DecidedSeptember 18, 2003

StatusPublished

Cited by1 cases

This text of 308 A.D.2d 376 (People v. Osorio) 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. Osorio, 308 A.D.2d 376, 764 N.Y.S.2d 355, 2003 N.Y. App. Div. LEXIS 9563 (N.Y. Ct. App. 2003).

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Opinion

—Judgment, Supreme Court, Bronx County (Barbara Newman, J.), rendered April 29, 1999, convicting defendant, after a jury trial, of burglary in the first and second degrees, robbery in the first and second degrees, unlawful imprisonment in the second degree and two counts of endangering the welfare of a child, and sentencing him to an aggregate term of 20 years, unanimously modified, on the law, to the extent of vacating the conviction of burglary in the second degree and dismissing that count, and otherwise affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Bleakley, 69 NY2d 490 [1987]). There is no basis for disturbing the jury’s determinations concerning identification. Defendant’s guilt was [377]*377established by the testimony of the victim, who recognized him as a person she had seen in her neighborhood on a regular basis for several years, and who identified him as the perpetrator three months later when she saw him on the street.

The court’s identification charge was thorough, detailed and balanced, and provided the jury with adequate guidance concerning the factors to be taken into consideration in evaluating identification testimony (see People v Gonzalez, 185 AD2d 857, 858-859 [1992], lv denied 80 NY2d 1026 [1992]).

Testimony regarding the effects of the crime on the victim’s children, who were present during the incident, was highly relevant to the charge of endangering the welfare of a child (see Penal Law § 260.10), and was not unduly prejudicial.

As the People concede, defendant’s conviction of burglary in the second degree should be dismissed as a lesser included offense of burglary in the first degree.

We have considered and rejected defendant’s remaining claims. Concur — Andrias, J.P., Saxe, Sullivan, Rosenberger and Marlow, JJ.

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—Judgment, Supreme Court, Bronx County (Barbara Newman, J.), rendered April 29, 1999, convicting defendant, after a jury trial, of burglary in the first and second degrees, robbery in the first and second degrees, unlawful imprisonment in the second degree and two counts of endangering the welfare of a child, and sentencing him to an aggregate term of 20 years, unanimously modified, on the law, to the extent of vacating the conviction of burglary in the second degree and dismissing that count, and otherwise affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Bleakley, 69 NY2d 490 [1987]). There is no basis for disturbing the jury’s determinations concerning identification. Defendant’s guilt was [377]*377established by the testimony of the victim, who recognized him as a person she had seen in her neighborhood on a regular basis for several years, and who identified him as the perpetrator three months later when she saw him on the street.

The court’s identification charge was thorough, detailed and balanced, and provided the jury with adequate guidance concerning the factors to be taken into consideration in evaluating identification testimony (see People v Gonzalez, 185 AD2d 857, 858-859 [1992], lv denied 80 NY2d 1026 [1992]).

Testimony regarding the effects of the crime on the victim’s children, who were present during the incident, was highly relevant to the charge of endangering the welfare of a child (see Penal Law § 260.10), and was not unduly prejudicial.

As the People concede, defendant’s conviction of burglary in the second degree should be dismissed as a lesser included offense of burglary in the first degree.

We have considered and rejected defendant’s remaining claims. Concur — Andrias, J.P., Saxe, Sullivan, Rosenberger and Marlow, JJ.

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Bluebook (online)

308 A.D.2d 376, 764 N.Y.S.2d 355, 2003 N.Y. App. Div. LEXIS 9563, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-osorio-nyappdiv-2003.

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