        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

776
KA 14-00231
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

NICHOLAS E. CARDUCCI, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (DAVID A.
HERATY OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (E. Jeannette
Ogden, A.J.), rendered September 3, 2013. The judgment convicted
defendant, upon a jury verdict, of burglary in the second degree.

     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 second degree (Penal Law
§ 140.25 [2]). We reject defendant’s contention that the People
violated County Court’s pretrial ruling that a detective who
investigated the burglarized house could not present opinion testimony
because he was not an expert in tool mark identification. The People
adhered to the ruling inasmuch as the detective did not render an
opinion whether the tool marks on the frame of the door leading from
the mud room into the house matched the burglar tools found in
defendant’s vehicle; he testified as a lay witness about his
observations and actions, which was proper (see generally People v
Hoppe, 47 AD2d 571, 572). In addition, the court did not err in
admitting the other evidence of the tool marks, including photographs
thereof (see People v Marini, 114 AD2d 686, 687-688, lv denied 67 NY2d
653). Defendant did not preserve his further contention that he was
prejudiced when the prosecutor elicited significant testimony from the
detective regarding his scientific background and education despite
the court’s ruling that the detective was not permitted to testify as
an expert (see CPL 470.05 [2]), and we decline to exercise our power
to review that contention as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]; People v Valdez, 53 AD3d 172,
173-176, lv denied 11 NY3d 836).

     Defendant failed to preserve for our review his contention that
the evidence is legally insufficient to establish that the attached
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                                                         KA 14-00231

mud room and the garage of the house in which he was discovered by the
homeowner were part of the “dwelling” for purposes of Penal Law
§§ 140.00 (3) and 140.25 (2) (see People v Rivera, 301 AD2d 787, 788,
lv denied 99 NY2d 631; People v Vasquez, 277 AD2d 1023, 1023, lv
denied 96 NY2d 788). In any event, that contention is without merit
(see People v Jackson, 126 AD3d 1508, 1510; Rivera, 301 AD2d at 788-
789; People v Carmel, 298 AD2d 928, 928-929, lv denied 99 NY2d 556).
We reject defendant’s contention that the evidence is legally
insufficient to establish that he intended to commit a crime when he
unlawfully entered the house (see generally People v Bleakley, 69 NY2d
490, 495). The jury was entitled to infer beyond a reasonable doubt
that defendant intended to commit a crime inside the building based on
the evidence of the fresh tool marks on the frame of the door leading
from the mud room into the house, defendant’s possession of burglar
tools, his unexplained presence on the premises, and his actions and
statements when confronted by the homeowner, the witnesses from whom
the homeowner sought help, and the police (see People v James, 114
AD3d 1202, 1205, lv denied 22 NY3d 1199; People v Freeman, 103 AD3d
1177, 1177-1178, lv denied 21 NY3d 912; People v Vivenzio, 103 AD2d
1044, 1044-1045). Contrary to defendant’s further contention, viewing
the evidence in light of the elements of the crime as charged to the
jury (see People v Danielson, 9 NY3d 342, 349), we conclude that the
verdict is not against the weight of the evidence (see generally
Bleakley, 69 NY2d at 495).

     Contrary to defendant’s contention, we conclude that he was not
deprived of a fair trial by prosecutorial misconduct during the
opening statement (see People v Castro, 281 AD2d 935, 935-936, lv
denied 96 NY2d 860), and that the alleged instances of prosecutorial
misconduct on summation were either “a fair response to defense
counsel’s summation or fair comment on the evidence” (People v Walker,
117 AD3d 1441, 1442, lv denied 23 NY3d 1044 [internal quotation marks
omitted]; see People v Hassem, 100 AD3d 1460, 1461, lv denied 20 NY3d
1099).

     We further conclude that the court properly declined to give
defendant’s requested supplemental jury charge inasmuch as an adverse
inference instruction was not warranted in this case (see generally
People v Durant, 26 NY3d 341, 347; People v Matos, 138 AD3d 426, 427,
lv denied 27 NY3d 1135). In addition, defendant failed to preserve
for our review his contention that the court’s instructions on the
burglary count were erroneous inasmuch as he did not request that the
court omit the “or remains” language from its proposed charge and
failed to object to the charge as given on that ground (see People v
Smith, 140 AD3d 1396, 1398; People v Bonner, 256 AD2d 1219, 1220, lv
denied 93 NY2d 871). We decline to exercise our power to review that
contention as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]; Smith, 140 AD3d at 1398). Contrary to defendant’s
further contention, this case does not involve the possibility that
the jury rendered a nonunanimous verdict, i.e., that defendant was
convicted on different theories of the burglary as presented in the
court’s charge, inasmuch as the evidence adduced here could not have
established that defendant entered the house lawfully and formed the
                                 -3-                           776
                                                         KA 14-00231

intent to commit a crime while remaining therein (cf. People v Graves,
136 AD3d 1347, 1348, lv denied 27 NY3d 1069).

     Finally, the sentence is not unduly harsh or severe. The
certificate of conviction, however, incorrectly reflects that
defendant was sentenced as a second felony offender, and it must
therefore be amended to reflect that he was sentenced as a second
violent felony offender (see People v Dombrowski, 94 AD3d 1416, 1417,
lv denied 19 NY3d 959; People v Afrika, 79 AD3d 1678, 1680, lv denied
17 NY3d 791).




Entered:   October 7, 2016                     Frances E. Cafarell
                                               Clerk of the Court
