PEOPLE v. DOWDALL (1997)

Defendant appeals from a judgment convicting him of burglary in the third degree, criminal mischief in the fourth degree and two counts of harassment in the second degree.   We reject the contention that the evidence is legally insufficient to support the conviction for burglary in the third degree.   The principal issue at trial was whether defendant had permission to enter his girl friend's apartment.   Viewing the evidence in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we conclude that it is legally sufficient to support the jury's finding that, at the time defendant broke into the apartment, he did not have his girl friend's permission to enter (see, People v. Jordan, 193 A.D.2d 890, 893-894, 597 N.Y.S.2d 807, lv. denied 82 N.Y.2d 756, 603 N.Y.S.2d 997, 624 N.E.2d 183;  People v. Quinones, 173 A.D.2d 395, 570 N.Y.S.2d 26, lv. denied 78 N.Y.2d 972, 574 N.Y.S.2d 952, 580 N.E.2d 424).   Further, upon weighing the relative probative force of the conflicting testimony, we conclude that the verdict is not contrary to the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672;  People v. Long, 224 A.D.2d 949, 638 N.Y.S.2d 369, lv. denied 88 N.Y.2d 967, 647 N.Y.S.2d 721, 670 N.E.2d 1353).

 County Court did not err in admitting evidence of a prior uncharged offense of harassing the same victim.   That evidence was relevant on the issue of defendant's intent when breaking into the apartment (see, People v. Schwerbel, 224 A.D.2d 830, 638 N.Y.S.2d 198 ).   We also reject the contention that defendant was denied effective assistance of counsel.

 We nevertheless conclude that defendant's conviction of burglary in the third degree and criminal mischief in the fourth degree under counts one and two of the indictment must be reversed and a new trial granted on those counts.   The prosecutor repeatedly impeached his own witnesses with prior inconsistent statements and compounded the error when, on summation, he denigrated their credibility and called attention to the fact that he had impeached their testimony with prior statements.   Indeed, the prosecutor repeatedly commented that three of his witnesses were lying and only one was telling the truth.   Sharp credibility issues were raised at trial and, despite defense counsel's failure to object on CPL 60.35 grounds or to object during the prosecutor's summation, we conclude that the cumulative effect of the errors deprived defendant of a fair trial on the burglary and criminal mischief counts (see, People v. Lawrence, 227 A.D.2d 893, 643 N.Y.S.2d 273 ).   Thus, we modify the judgment as a matter of discretion in the interest of justice by reversing defendant's conviction of burglary in the third degree and criminal mischief in the fourth degree under counts one and two of the indictment (see, CPL 470.15[6][a] ) and vacating the sentences imposed thereon, and we grant a new trial on those counts.

Judgment unanimously modified as a matter of discretion in the interest of justice and as modified affirmed and new trial granted on counts one and two of indictment.

MEMORANDUM: