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

582
KA 14-00981
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND CURRAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JEROME INGRAM, 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 (MATTHEW
B. POWERS OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Deborah
A. Haendiges, J.), rendered May 12, 2014. 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 reversed on the law and a new trial is granted on the
first count of the indictment.

     Memorandum: On appeal from a judgment convicting him following a
jury trial of burglary in the second degree (Penal Law § 140.25 [2]),
defendant contends that the evidence is legally insufficient to
establish his guilt and the verdict is against the weight of the
evidence. We reject those contentions. Viewing the evidence in the
light most favorable to the prosecution (see People v Contes, 60 NY2d
620, 621), we conclude that “there is a valid line of reasoning and
permissible inferences to support the jury’s finding that defendant
committed the crime[] of which he was convicted based on the evidence
presented at trial” (People v Scott, 93 AD3d 1193, 1194, lv denied 19
NY3d 967, reconsideration denied 19 NY3d 1001; see generally People v
Bleakley, 69 NY2d 490, 495). 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 further conclude that the verdict is not against
the weight of the evidence (see generally Bleakley, 69 NY2d at 495).
Although a different verdict would not have been unreasonable, it
cannot be said that the jurors failed to give the evidence the weight
it should be accorded (see People v Canfield, 111 AD3d 1396, 1397, lv
denied 22 NY3d 1087; People v Ettleman, 109 AD3d 1126, 1128, lv denied
22 NY3d 1198).

     We agree with defendant, however, that reversal is required based
on Supreme Court’s refusal to charge criminal trespass in the second
degree (Penal Law § 140.15 [1]) as a lesser included offense of
                                 -2-                           582
                                                         KA 14-00981

burglary in the second degree. Viewing the evidence in the light most
favorable to defendant, as we must in this context (see People v
Randolph, 81 NY2d 868, 869), we conclude that there is “a reasonable
view of the evidence to support a finding that the defendant committed
the lesser offense but not the greater” (People v Van Norstrand, 85
NY2d 131, 135; see People v Borges, 90 AD3d 1067, 1069), i.e., that he
did not intend to commit a crime when he entered the victim’s
apartment without her permission.

     In light of our determination, we need not address defendant’s
remaining contentions, none of which, if meritorious, would result in
dismissal of the indictment.




Entered:   June 17, 2016                        Frances E. Cafarell
                                                Clerk of the Court
