People v. Pitello

97 A.D.2d 801, 468 N.Y.S.2d 546, 1983 N.Y. App. Div. LEXIS 20567

Opinion

Appeal by defendant from a judgment of the County Court, Nassau County (Harrington, J.), rendered April 19, 1982, convicting him of arson in the third degree and burglary in the third degree, after a nonjury trial, and imposing sentence. Judgment affirmed. Defendant was indicted for the crimes of arson in the third degree (Penal Law, § 150.10), arson in the fourth degree (Penal Law, § 150.05), burglary in the third degree (Penal Law, § 140.20), and criminal mischief in the second degree (Penal Law, § 145.10). He was tried without a jury. At the close of the trial, the Trial Judge found defendant guilty of the counts of arson in the third degree and burglary in the third degree, and dismissed the remaining counts as lesser included offenses. Concededly, the Trial Judge did not, prior to defense counsel’s summation, state upon the record the counts upon which he intended to render a verdict (see CPL 320.20, subd 5). However, since defendant was convicted of offenses specified in the indictment, and not of any lesser included offenses, the error was harmless beyond a reasonable doubt (see People v Smith, 77 AD2d 712; People v Scott, 66 AD2d 861; People v Chapman, 60 AD2d 584). We have examined defendant’s other contentions and find them to be without merit. Weinstein, J. P., Thompson, Brown and Niehoff, JJ., concur.