PEOPLE v. STORMS

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

The PEOPLE, etc., respondent, v. Nathaniel STORMS, appellant.

Decided: December 22, 2003

A. GAIL PRUDENTI, P.J., SONDRA MILLER, HOWARD MILLER, and THOMAS A. ADAMS, JJ. Lynn W.L. Fahey, New York, N.Y. (Alexis A. Ascher of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Ann Bordley of counsel;  Steven Starr on the brief), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Barbaro, J.), rendered March 7, 2002, convicting him of burglary in the second degree and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 Upon viewing the evidence in the light most favorable to the defendant, the trial court must instruct the jury on a claimed defense if it is supported by a reasonable view of the evidence (see People v. Butts, 72 N.Y.2d 746, 750, 536 N.Y.S.2d 730, 533 N.E.2d 660;  People v. Collins, 290 A.D.2d 457, 736 N.Y.S.2d 109).   Here, the evidence established that the police responded to a call of a “burglary in progress” and arriving at the scene, observed the defendant exiting the complainant's apartment through a second-floor window onto a fire escape.   The complainant's jewelry and television remote control were found in the defendant's back pocket.   The police officers observed that the apartment was “in shambles” and had been “ransacked,” finding “clothes everywhere,” and “[a]ll kinds of items just pulled out of drawers.”   The defendant's claim that he believed he was given permission and authority to be in the apartment by someone named “Jake” was unsubstantiated.   Moreover, the trial court's instructions to the jury on the elements of burglary and criminal possession of stolen property adequately covered the defense theory (see People v. Williams, 81 N.Y.2d 303, 317, 598 N.Y.S.2d 167, 614 N.E.2d 730;  People v. Banks, 248 A.D.2d 183, 670 N.Y.S.2d 764).   Accordingly, the court properly refused the defendant's request for a specific charge on the mistake of fact defense.

The defendant's remaining contentions are either unpreserved for appellate review or without merit.

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