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

608
KA 10-00697
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DARIO M. MARTINEZ, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered January 27, 2010. The judgment convicted
defendant, upon a jury verdict, of burglary in the third degree and
criminal mischief in the fourth degree.

     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 burglary in the third degree (Penal Law § 140.20) and
criminal mischief in the fourth degree (§ 145.00 [1]), defendant
contends that he was improperly convicted of an unindicted count of
burglary in the third degree. We reject that contention. Defendant
entered two separate buildings on the RIT campus on the night of June
7, 2009—Building 4 and Building 7B—and we agree with defendant that
there was evidence before the jury indicating that there were two
distinct acts of burglary. We nevertheless conclude that the jury was
made aware that defendant was being tried for his actions solely for
the burglary of Building 7B, which is also referred to as the Frank
Gannett Building, and that there was thus no danger that defendant was
convicted with respect to acts that occurred in Building 4 (see People
v Ramirez, 99 AD3d 1241, 1242, lv denied 20 NY3d 988). During his
opening statement, the prosecutor informed the jury that he intended
to prove that defendant burglarized “the building known as the Frank
Gannett building or Building 7B on the Rochester Institute of
Technology campus.” The prosecutor never mentioned any other
buildings during his opening statement, nor did defense counsel. Of
the eight prosecution witnesses, only one mentioned Building 4. The
remaining testimony focused on Building 7B. During his summation,
defense counsel stated, “There’s no videotape of what happened in the
Gannett Building, which is what he’s charged with. You have to be
really clear on that. He is charged with, not what happened at the
                                 -2-                           608
                                                         KA 10-00697

Student Union building [Building 4], he’s charged with what went on in
the Gannett building afterward.” Defense counsel further stated that
what happened in Building 4 was irrelevant to whether defendant
entered Building 7B with the intent to commit a crime therein. Under
the circumstances, we perceive no danger that defendant was convicted
of an unindicted burglary, thereby “resulting in the usurpation by the
prosecutor of the exclusive power of the Grand Jury to determine the
charges” (People v McNab, 167 AD2d 858, 858; cf. People v Boykins, 85
AD3d 1554, 1555, lv denied 17 NY3d 814; People v Comfort, 31 AD3d
1110, 1111, lv denied 7 NY3d 847).

     Contrary to the further contention of defendant, 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 against the weight of the evidence (see generally
People v Bleakley, 69 NY2d 490, 495). Here, although it would not
have been unreasonable for the jury to find that defendant did not
enter Building 7B with the intent to commit a crime therein, it cannot
be said that the jury failed to give the evidence the weight it should
be accorded (see generally id.).




Entered: June 20, 2014                          Frances E. Cafarell
                                                Clerk of the Court
