THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. DANIEL DAWSON DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department, New York.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. DANIEL N. DAWSON, DEFENDANT-APPELLANT.

KA 08-01551

Decided: December 30, 2010

PRESENT:  SMITH, J.P., LINDLEY, SCONIERS, PINE, AND GORSKI, JJ. GARY A. HORTON, PUBLIC DEFENDER, BATAVIA (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT. DANIEL N. DAWSON, DEFENDANT-APPELLANT PRO SE. LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  On appeal from a judgment convicting him upon a jury verdict of, inter alia, two counts of burglary in the first degree (Penal Law § 140.30 [2], [3] ), defendant contends that the prosecutor's summation and County Court's jury charge improperly altered the theory of the prosecution.   We address that contention despite defendant's failure to preserve it for our review because “the ‘right of an accused to be tried and convicted of only those crimes and upon only those theories charged in the indictment is fundamental and nonwaivable’ “ (People v. Burnett, 306 A.D.2d 947, 948, quoting People v. Rubin, 101 A.D.2d 71, 77, lv denied 63 N.Y.2d 711;  see People v. Greaves, 1 AD3d 979, 980).   Nevertheless, we reject that contention inasmuch as the record establishes that defendant received the requisite “fair notice of the accusations made against him, so that he [was] able to prepare a defense” (People v. Iannone, 45 N.Y.2d 589, 594;  see People v. Grega, 72 N.Y.2d 489, 495).   Although the indictment and the bill of particulars referred solely to a “pellet gun,” the court's reference in the jury charge to a pellet gun or a BB gun “did not charge ‘a substantive crime not appearing in the indictment or amend[ ] the indictment to charge additional criminal acts or crimes' “ (People v. Rivera, 84 N.Y.2d 766, 769), nor did the prosecutor's reference thereto on summation change the theory of the prosecution.   The testimony of the witnesses referred only to one gun, and they used the terms “pellet gun” and “BB gun” interchangeably.

Contrary to defendant's further contention, the conviction is supported by legally sufficient evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495).   Furthermore, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 NY3d 342, 349), we conclude that the verdict is not contrary to the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495), and we conclude that the sentence is not unduly harsh or severe.   Finally, we have considered the remaining contentions of defendant, including those raised in his pro se supplemental brief, and conclude that they are without merit.

Patricia L. Morgan

Clerk of the Court