PEOPLE v. GILBO (2006)

Appeal from a judgment of the County Court of St. Lawrence County (Rogers, J.), rendered January 24, 2005, upon a verdict convicting defendant of the crimes of criminal trespass in the second degree and petit larceny.

Defendant was indicted for burglary in the second degree and grand larceny in the fourth degree based on allegations that she broke into a trailer where she believed her estranged husband was staying and stole DVDs and NASCAR paraphernalia belonging to the tenant.   Upon defendant's motion, County Court reduced the grand larceny count to petit larceny.   The jury convicted defendant of petit larceny and criminal trespass in the second degree, a lesser included offense of the burglary count.   After being sentenced to probation, defendant appealed.

 At trial, the People mentioned in their opening statement that defendant's husband acquired an order of protection against her which was in effect at the time of this crime, which order was later admitted into evidence over defendant's objection.   Defendant was not deprived of a fair trial when County Court allowed the prosecution to discuss the order of protection and admit it into evidence.   In a burglary case, the People are not required to state or prove which particular crime the defendant intended to commit within the building unless the People limit their theory to one specific crime (see People v. Barnes, 50 N.Y.2d 375, 379 n. 3, 429 N.Y.S.2d 178, 406 N.E.2d 1071 [1980];  People v. Kownack, 20 A.D.3d 681, 682, 798 N.Y.S.2d 228 [2005];  People v. Brown, 251 A.D.2d 694, 695-696, 674 N.Y.S.2d 149 [1998], lv. denied 92 N.Y.2d 1029, 684 N.Y.S.2d 494, 707 N.E.2d 449 [1998] ).   Inclusion of a larceny count in the same indictment did not limit the prosecution's theory under the burglary count (see People v. Goldsmith, 127 A.D.2d 293, 295-296, 515 N.Y.S.2d 321 [1987], lv. denied 70 N.Y.2d 711, 519 N.Y.S.2d 1046, 513 N.E.2d 1314 [1987] ).   The People could attempt to prove that defendant, while in the dwelling, intended either to steal property-the crime of larceny-or to engage in conduct prohibited by the order of protection-the crime of criminal contempt (cf. People v. Lewis, 5 N.Y.3d 546, 548, 807 N.Y.S.2d 1, 840 N.E.2d 1014 [2005] ).   That the single count of burglary could be proven based on defendant's intent to commit one of two different crimes inside the building did not render that count of the indictment duplicitous (see People v. Giordano, 296 A.D.2d 714, 715, 745 N.Y.S.2d 598 [2002], lv. denied 99 N.Y.2d 582, 755 N.Y.S.2d 718, 785 N.E.2d 740 [2003];  compare CPL 200.30[2] ).   Admission of the order of protection and testimony about it did not violate Molineux because this evidence was relevant to establishing an element of the crime charged, defendant's intent (see People v. Mathias, 7 A.D.3d 824, 825-826, 776 N.Y.S.2d 622 [2004] ).   The prosecution's failure to provide defense counsel a copy of the order did not violate any discovery statute or order and defendant possessed a copy of the order which was served upon her in connection with other proceedings.   In any event, counsel was not prejudiced because under the alibi defense defendant could not have intended to commit a crime in the building because she alleged she was not there.

Defendant's other arguments do not require extensive discussion.   Crediting the testimony of the People's witnesses, the conviction here is supported by sufficient evidence (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).   Although the prosecutor at times asked leading questions of one witness, such conduct did not deprive defendant of a fair trial (see People v. Grajales, 294 A.D.2d 657, 658, 742 N.Y.S.2d 687 [2002], lv. denied 98 N.Y.2d 697, 747 N.Y.S.2d 415, 776 N.E.2d 4 [2002] ).   Defendant's allegations of ineffective assistance of counsel amount to nothing more than second-guessing counsel's strategy, rather than truly ineffective behavior, especially considering that defendant was indicted on two felonies and only convicted of misdemeanors (see People v. Gross, 21 A.D.3d 1224, 1224, 801 N.Y.S.2d 430 [2005];  People v. De Fayette, 16 A.D.3d 708, 709, 790 N.Y.S.2d 301 [2005], lv. denied 4 N.Y.3d 885, 798 N.Y.S.2d 730, 831 N.E.2d 975 [2005] ).   Any remaining contentions are without merit.

ORDERED that the judgment is affirmed.

KANE, J.

MERCURE, J.P., CREW III, PETERS and ROSE, JJ., concur.