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

861
KA 10-00213
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JEFFREY R. DOMBROWSKI, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF
COUNSEL), FOR RESPONDENT.


     Appeal, by permission of a Justice of the Appellate Division of
the Supreme Court in the Fourth Judicial Department, from an order of
the Erie County Court (Michael F. Pietruszka, J.), entered December 3,
2009. The order denied the CPL article 440 motion of defendant.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Erie County Court for further
proceedings in accordance with the following Memorandum: Defendant
appeals from an order summarily denying his motion pursuant to CPL
440.10 and 440.20 seeking to vacate the judgment convicting him upon a
nonjury verdict of, inter alia, burglary in the second degree (Penal
Law § 140.25 [2]) and to set aside the sentence. This Court
previously affirmed the judgment of conviction (People v Dombrowski,
55 AD3d 1358, lv denied 11 NY3d 924). We note at the outset that
defendant does not raise any contention concerning the denial of that
part of his motion seeking to set aside the sentence, and we thus deem
any issues with respect thereto abandoned (see generally People v
Bradley, 83 AD3d 1444, 1445).

     Defendant contends that he was denied effective assistance of
counsel based on the failure of his trial counsel to call various
witnesses who allegedly would have testified that they observed
defendant leaving and entering the apartment in question on a regular
basis. According to defendant, they also would have testified that
they observed him accessing the apartment with keys and bringing
groceries into the apartment. The complainant, who was the mother of
defendant’s child, testified that, at the time of the alleged
burglary, her romantic relationship with defendant had ended. She
admitted, however, that she had taken two vacations with defendant
within the month preceding the alleged burglary and that defendant had
occasionally spent the night at the apartment since the romantic
relationship ended.
                                 -2-                           861
                                                         KA 10-00213

     In order for a factfinder to convict a defendant of burglary in
the second degree, the People are required to establish that the
defendant knowingly entered or remained unlawfully in a dwelling with
the intent to commit a crime therein (Penal Law § 140.25 [2]). “A
person ‘enters or remains unlawfully’ in or upon premises when he [or
she] is not licensed or privileged to do so” (§ 140.00 [5]). “In
general, a person is ‘licensed or privileged’ to enter private
premises when he [or she] has obtained the consent of the owner or
another whose relationship to the premises gives him [or her]
authority to issue such consent” (People v Graves, 76 NY2d 16, 20; see
People v Dale, 224 AD2d 917). Here, the testimony of the witnesses in
question would have supported the defense theory that defendant did
not enter the apartment unlawfully. Contrary to the contention of the
People, defendant was not required to establish that he actually
resided at the apartment. “[T]he intruder must be aware of the fact
that he [or she] has no license or privilege to enter the premises . .
. Thus, a person who mistakenly believed that he [or she] was licensed
or privileged to enter a building[] would not be guilty of burglary,
even though he [or she] entered with intent to commit a crime therein”
(People v Uloth, 201 AD2d 926, 926 [internal quotation marks omitted];
see People v Isogna, 86 AD2d 979; cf. People v Bull, 136 AD2d 929, lv
denied 71 NY2d 966).

     It is well established that “the failure to investigate or call
exculpatory witnesses may amount to ineffective assistance of counsel”
(People v Nau, 21 AD3d 568, 569; see People v Mosley, 56 AD3d 1140;
People v Bussey, 6 AD3d 621, 623, lv denied 4 NY3d 828), but it is
also well established that “[t]rial tactics [that] terminate
unsuccessfully do not automatically indicate ineffectiveness” (People
v Baldi, 54 NY2d 137, 146). Here, defendant submitted the affidavits
of the witnesses in question setting forth the substance of their
proposed testimony, as well as their willingness to testify (cf.
People v Ozuna, 7 NY3d 913, 915). Two of those witnesses were
actually present in the courthouse during defendant’s trial. From
this record, we can discern no tactical reason for trial counsel’s
failure to call those witnesses to testify (see People v Castricone,
224 AD2d 1019; see also Bussey, 6 AD3d at 623; cf. People v Brooks,
283 AD2d 367, lv denied 96 NY2d 916). Thus, a hearing is required to
afford defendant’s trial counsel an opportunity to explain the reason
that he chose not to call those witnesses “ ‘or to provide a tactical
explanation for the omission’ ” (Mosley, 56 AD3d at 1141; see e.g.
Nau, 21 AD3d at 569; People v Coleman, 10 AD3d 487). We therefore
hold the case, reserve decision and remit the matter to County Court
for a hearing on that issue.




Entered:   September 30, 2011                  Patricia L. Morgan
                                               Clerk of the Court
