THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. MICHAEL LUGO DEFENDANT APPELLANT

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

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. MICHAEL C. LUGO, DEFENDANT–APPELLANT.

KA 08–01709

Decided: September 30, 2011

PRESENT:  FAHEY, J.P., PERADOTTO, LINDLEY, SCONIERS, AND GREEN, JJ. BRIDGET L. FIELD, BATAVIA, FOR DEFENDANT–APPELLANT. MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (LESLIE E. SWIFT OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him, upon a jury verdict, of burglary in the first degree (Penal Law § 140.30[4] ) and criminal possession of a weapon in the second degree (§ 265.03[3] ).   Contrary to defendant's contention, the People laid a proper foundation for the admission in evidence of a recording of the 911 call made by the victim.   The victim testified at trial that the recording was “a complete and accurate reproduction of the [911 call] and [that it had] not been altered” (People v. Ely, 68 N.Y.2d 520, 527;  see People v. Hurlbert, 81 AD3d 1430, 1431, lv denied 16 NY3d 896).   We reject defendant's further contention that County Court erred in finding the recording of the 911 call sufficiently audible to warrant its admission in evidence (see People v. Rivera, 257 A.D.2d 172, 176, affd 94 N.Y.2d 908;  People v. Cleveland, 273 A.D.2d 787, lv denied 95 N.Y.2d 864).

Defendant contends that the admission in evidence of his codefendant's statements to the victims through their testimony and the recording of the 911 call violated his right of confrontation under Crawford v. Washington (541 U.S. 36), inasmuch as the codefendant did not testify.   We reject that contention because the codefendant's statements “were not themselves testimonial in nature” (People v. Robles, 72 AD3d 1520, 1521, lv denied 15 NY3d 777;  see generally Crawford, 541 U.S. at 51–54;  People v. Goldstein, 6 NY3d 119, 128–129, cert denied 547 U.S. 1159).   We further conclude that there was no violation of defendant's rights under Bruton v. United States (391 U.S. 123).

Defendant failed to preserve for our review his contention that the court failed to comply with CPL 300.10(4) by failing to inform the parties of the charges to be submitted to the jury until after summations.   In any event, we conclude that such error is harmless (see People v. Miller, 70 N.Y.2d 903, 907).   The theory of the defense on summation was that the victims were not credible, “a theory that applies equally to the offenses” of burglary in the first degree and the lesser included offense of criminal trespass in the second degree under Penal Law § 140.15(1) (People v. Kurkowski, 83 AD3d 1595, 1596, lv denied 16 NY3d 896;  see People v. Harvey, 249 A.D.2d 951, 951).   In addition, “the court offered defense counsel the opportunity to reopen summations [after it granted defendant's request to charge that] lesser included offense, thus alleviating any possible prejudice to defendant” (Kurkowski, 83 AD3d at 1595;  see People v. Boisseau, 193 A.D.2d 517, lv denied 81 N.Y.2d 1070).

Defendant further contends that the burglary conviction is not supported by legally sufficient evidence because the People failed to establish his intent to commit a crime in the victims' apartment.   That contention is not preserved for our review inasmuch as defendant failed to renew his motion for a trial order of dismissal after presenting evidence (see People v. Hines, 97 N.Y.2d 56, 61, rearg. denied 97 N.Y.2d 678).   In any event, we conclude that the evidence is legally sufficient to establish defendant's intent to commit a crime within the dwelling (see Penal Law § 140.30[4];  see generally People v. Bleakley, 69 N.Y.2d 490, 495).   Viewing the evidence in light of the elements of the burglary count as charged to the jury (see People v. Danielson, 9 NY3d 342, 349), we conclude that the verdict with respect to that count is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495).   We reject defendant's contention that he was denied effective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 147).

Contrary to defendant's further contention, the court did not abuse its discretion in denying his request for youthful offender status.   Defendant was convicted of two armed felonies (see CPL 1.20[41];  Penal Law § 140.30 [4];  § 265.03[3] ), and thus he was eligible to be adjudicated a youthful offender only if the court determined that there were “mitigating circumstances that bear directly upon the manner in which the crime[s were] committed;  or ․ [, inasmuch as] defendant was not the sole participant in the crime, [that] defendant's participation was relatively minor” (CPL 720.10[3];  see CPL 720.10[2][a][ii];  People v. Crawford, 55 AD3d 1335, 1336, lv denied 11 NY3d 896).  “ ‘Here, the defendant offered the ․ court no evidence of mitigating circumstances relating to the manner in which the subject [crimes were] committed, and his role in the [crimes] was not minor’ “ (Crawford, 55 AD3d at 1336;  see People v. Parker, 67 AD3d 1405, lv denied 15 NY3d 755;  People v. Barski, 66 AD3d 1381, 1383, lv denied 13 NY3d 905).   Thus, defendant was not eligible to be adjudicated a youthful offender (see CPL 720.10[3];  Crawford, 55 AD3d at 1336).

Finally, we conclude that the sentence is not unduly harsh or severe, particularly in light of the serious nature of defendant's conduct.

Patricia L. Morgan

Clerk of the Court