People v. Petersen

190 A.D.3d 769

140 N.Y.S.3d 234

The PEOPLE, etc., respondent,

v.Gary PETERSEN, appellant.

2017–01801

Ind.No. 2794/15

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

Submitted—December 15, 2020

January 13, 2021

Edelstein & Grossman, New York, NY (Jonathan I. Edelstein of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Ellen C. Abbot, and Charles T. Pollak of counsel), for respondent.

LEONARD B. AUSTIN, J.P., BETSY BARROS, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Leslie Leach, J.), rendered February 16, 2017, as amended March 2, 2017, convicting him of burglary in the second degree (two counts), criminal mischief in the third degree, and petit larceny, upon a jury verdict, and imposing sentence.

ORDERED that the judgment, as amended, is modified, on the law, by vacating the convictions of burglary in the second degree under counts one and two of the indictment, and vacating the sentences imposed thereon; as so modified, the judgment, as amended, is affirmed, and the matter is remitted to the Supreme Court, Queens County, for a new trial on those counts of the indictment.

The defendant was indicted on charges of burglary in the second degree (two counts), criminal mischief in the third degree, and petit larceny, arising out of an incident on December 2, 2015, when he entered a rooming house and allegedly damaged property, including two doors, and stole surveillance cameras. Following a jury trial, the defendant was convicted on all charges. The defendant appeals.

A defendant has a right to be tried only for the crimes charged in the indictment (see Stirone v. United States, 361 U.S. 212, 217–218, 80 S.Ct. 270, 4 L.Ed.2d 252 ; People v. Badalamenti, 27 N.Y.3d 423, 439, 34 N.Y.S.3d 360, 54 N.E.3d 32 ; People v. Grega, 72 N.Y.2d 489, 498, 534 N.Y.S.2d 647, 531 N.E.2d 279 ). "Where the prosecution is limited by the indictment or bill of particulars to a certain theory or theories, the court must hold the prosecution to such narrower theory or theories" ( People v. Vasquez, 161 A.D.3d 902, 902, 73 N.Y.S.3d 449 ; see People v. Graves, 136 A.D.3d 1347, 1348, 25 N.Y.S.3d 477 ). This rule applies in cases charging burglary, where it is not normally necessary for the People to demonstrate the exact crime which the defendant intended to commit while inside the building (see People v. Barnes, 50 N.Y.2d 375, 379 n. 3, 429 N.Y.S.2d 178, 406 N.E.2d 1071 ; People v. Mackey, 49 N.Y.2d 274, 279, 425 N.Y.S.2d 288, 401 N.E.2d 398 ; People v. Aveni, 100 A.D.3d 228, 243, 953 N.Y.S.2d 55 ; People v. Kolempear, 267 A.D.2d 327, 327, 701 N.Y.S.2d 92 ).

Here, we agree with the defendant that the People limited their theory of burglary in their bill of particulars, which incorporated the allegations of the criminal complaint, to the intent to commit property damage and/or theft (see People v. Aveni, 100 A.D.3d at 243, 953 N.Y.S.2d 55 ; see also CPL 200.50[7][a] ). Therefore, the Supreme Court erred in permitting the prosecutor to argue, during summation, and in permitting the jury to consider, the uncharged theory that the defendant intended to assault the complainant (see People v. Grega, 72 N.Y.2d at 498, 534 N.Y.S.2d 647, 531 N.E.2d 279 ; People v. Vasquez, 161 A.D.3d at 902, 73 N.Y.S.3d 449 ; People v. Graves, 136 A.D.3d at 1348, 25 N.Y.S.3d 477 ).

Contrary to the People's contention, to the extent preservation of this contention was required (see People v. Williams, 170 A.D.3d 1046, 1048, 96 N.Y.S.3d 273 ; but see People v. Graves, 136 A.D.3d at 1348, 25 N.Y.S.3d 477 ), this contention was preserved for review by repeated timely objections and motions for a mistrial (see CPL 470.05[2] ; People v. Prince, 36 A.D.3d 833, 833, 831 N.Y.S.2d 182 ). Further, since there was evidence supporting the uncharged theory, it is impossible to determine whether the verdict of guilty was founded on the uncharged theory, and harmless error analysis does not apply (see People v. Badalamenti, 27 N.Y.3d at 439, 34 N.Y.S.3d 360, 54 N.E.3d 32 ; People v. Martinez, 83 N.Y.2d 26, 35, 607 N.Y.S.2d 610, 628 N.E.2d 1320 ; People v. Vasquez, 161 A.D.3d at 902, 73 N.Y.S.3d 449 ). In any event, we conclude that the People's failure to give the defendant any notice of the new theory until their summation denied the defendant a fair trial on the burglary charges.

Accordingly, we vacate the defendant's convictions of burglary in the second degree and remit those charges for a new trial.

However, the defendant has not established a basis to vacate his convictions for criminal mischief in the third degree and petit larceny. Contrary to the defendant's contention, evidence concerning a prior incident when property in one of the complainant's rooms was damaged was properly admitted, as the circumstantial evidence sufficiently connected the defendant to the prior incident (cf. People v. San Roc Rest., Inc., 117 A.D.2d 760, 761, 498 N.Y.S.2d 481 ). The defendant was not denied a fair trial by certain comments by the Supreme Court that allegedly denigrated defense counsel (see People v. Brown, 262 A.D.2d 570, 573, 694 N.Y.S.2d 666, affd 95 N.Y.2d 776, 710 N.Y.S.2d 837, 732 N.E.2d 944 ; cf. People v. De Jesus, 42 N.Y.2d 519, 523–524, 399 N.Y.S.2d 196, 369 N.E.2d 752 ; People v. Leggett, 76 A.D.3d 860, 861–862, 908 N.Y.S.2d 172 ; People v. Reina, 94 A.D.2d 727, 727–728, 462 N.Y.S.2d 264 ). To the extent that the defendant preserved his current challenge to testimony elicited from a detective as to the truth of the defendant's statements, the defendant was not unduly prejudiced by the testimony, "since the testimony was brief and the court sustained an objection to the question, immediately struck the testimony from the record, and gave a curative instruction to the jury" ( People v. Raysor, 130 A.D.3d 1079, 1080, 15 N.Y.S.3d 111 ; see People v. Allen, 222 A.D.2d 441, 442, 635 N.Y.S.2d 40 ).

We agree with the defendant that the Supreme Court improperly limited the defendant's cross examination of one of the witnesses, who testified that he was responsible for maintenance and for letting rooms...