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

1038
KA 08-01709
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, SCONIERS, AND GREEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL C. LUGO, DEFENDANT-APPELLANT.


BRIDGET L. FIELD, BATAVIA, FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (LESLIE E. SWIFT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Dennis S.
Cohen, A.J.), rendered June 13, 2008. The judgment convicted
defendant, upon a jury verdict, of burglary in the first degree and
criminal possession of a weapon 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 first degree (Penal Law §
140.30 [4]) and criminal possession of a weapon in the second degree
(§ 265.03 [3]). Contrary to defendant’s contention, the People laid a
proper foundation for the admission in evidence of a recording of the
911 call made by the victim. The victim testified at trial that the
recording was “a complete and accurate reproduction of the [911 call]
and [that it had] not been altered” (People v Ely, 68 NY2d 520, 527;
see People v Hurlbert, 81 AD3d 1430, 1431, lv denied 16 NY3d 896). We
reject defendant’s further contention that County Court erred in
finding the recording of the 911 call sufficiently audible to warrant
its admission in evidence (see People v Rivera, 257 AD2d 172, 176,
affd 94 NY2d 908; People v Cleveland, 273 AD2d 787, lv denied 95 NY2d
864).

     Defendant contends that the admission in evidence of his
codefendant’s statements to the victims through their testimony and
the recording of the 911 call violated his right of confrontation
under Crawford v Washington (541 US 36), inasmuch as the codefendant
did not testify. We reject that contention because the codefendant’s
statements “were not themselves testimonial in nature” (People v
Robles, 72 AD3d 1520, 1521, lv denied 15 NY3d 777; see generally
Crawford, 541 US at 51-54; People v Goldstein, 6 NY3d 119, 128-129,
cert denied 547 US 1159). We further conclude that there was no
violation of defendant’s rights under Bruton v United States (391 US
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                                                         KA 08-01709

123).

     Defendant failed to preserve for our review his contention that
the court failed to comply with CPL 300.10 (4) by failing to inform
the parties of the charges to be submitted to the jury until after
summations. In any event, we conclude that such error is harmless
(see People v Miller, 70 NY2d 903, 907). The theory of the defense on
summation was that the victims were not credible, “a theory that
applies equally to the offenses” of burglary in the first degree and
the lesser included offense of criminal trespass in the second degree
under Penal Law § 140.15 (1) (People v Kurkowski, 83 AD3d 1595, 1596,
lv denied 16 NY3d 896; see People v Harvey, 249 AD2d 951, 951). In
addition, “the court offered defense counsel the opportunity to reopen
summations [after it granted defendant’s request to charge that]
lesser included offense, thus alleviating any possible prejudice to
defendant” (Kurkowski, 83 AD3d at 1595; see People v Boisseau, 193
AD2d 517, lv denied 81 NY2d 1070).

     Defendant further contends that the burglary conviction is not
supported by legally sufficient evidence because the People failed to
establish his intent to commit a crime in the victims’ apartment.
That contention is not preserved for our review inasmuch as defendant
failed to renew his motion for a trial order of dismissal after
presenting evidence (see People v Hines, 97 NY2d 56, 61, rearg denied
97 NY2d 678). In any event, we conclude that the evidence is legally
sufficient to establish defendant’s intent to commit a crime within
the dwelling (see Penal Law § 140.30 [4]; see generally People v
Bleakley, 69 NY2d 490, 495). Viewing the evidence in light of the
elements of the burglary count as charged to the jury (see People v
Danielson, 9 NY3d 342, 349), we conclude that the verdict with respect
to that count is not against the weight of the evidence (see generally
Bleakley, 69 NY2d at 495). We reject defendant’s contention that he
was denied effective assistance of counsel (see generally People v
Baldi, 54 NY2d 137, 147).

     Contrary to defendant’s further contention, the court did not
abuse its discretion in denying his request for youthful offender
status. Defendant was convicted of two armed felonies (see CPL 1.20
[41]; Penal Law § 140.30 [4]; § 265.03 [3]), and thus he was eligible
to be adjudicated a youthful offender only if the court determined
that there were “mitigating circumstances that bear directly upon the
manner in which the crime[s were] committed; or . . .[, inasmuch as]
defendant was not the sole participant in the crime, [that]
defendant’s participation was relatively minor” (CPL 720.10 [3]; see
CPL 720.10 [2] [a] [ii]; People v Crawford, 55 AD3d 1335, 1336, lv
denied 11 NY3d 896). “ ‘Here, the defendant offered the . . . court
no evidence of mitigating circumstances relating to the manner in
which the subject [crimes were] committed, and his role in the
[crimes] was not minor’ ” (Crawford, 55 AD3d at 1336; see People v
Parker, 67 AD3d 1405, lv denied 15 NY3d 755; People v Barski, 66 AD3d
1381, 1383, lv denied 13 NY3d 905). Thus, defendant was not eligible
to be adjudicated a youthful offender (see CPL 720.10 [3]; Crawford,
55 AD3d at 1336).
                                 -3-                          1038
                                                         KA 08-01709

     Finally, we conclude that the sentence is not unduly harsh or
severe, particularly in light of the serious nature of defendant’s
conduct.




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