SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
795
KA 11-01473
PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
CODY WENNER, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF
COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (Vincent M.
Dinolfo, J.), rendered May 19, 2011. 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: On appeal from a judgment convicting him, upon a
jury verdict, of burglary in the second degree (Penal Law § 140.25
[2]), defendant contends that the evidence is legally insufficient to
support the conviction because the People failed to establish that he
entered the victim’s dwelling. We reject that contention. Defendant
was charged both as a principal and an accomplice and, to establish
defendant’s liability as an accomplice, the People were not required
to prove that he entered the victim’s residence. We conclude that the
evidence is legally sufficient to establish defendant’s liability as
an accomplice inasmuch as he “importuned and intentionally aided
[another] in breaking into [the victim’s] home with the intent that
they commit a crime therein” (People v Hill, 188 AD2d 949, 950; see
People v Soto, 216 AD2d 337, 337, lv denied 86 NY2d 803). In any
event, contrary to defendant’s contention, the evidence is legally
sufficient to establish defendant’s liability as a principal. Viewing
the evidence in the light most favorable to the People (see People v
Contes, 60 NY2d 620, 621), we conclude that there is “ ‘a valid line
of reasoning and permissible inferences from which a rational jury’ ”
could have found that defendant personally entered the residence and
removed the large television that he and his codefendant were seen
carrying in the vicinity of the victim’s residence shortly before the
crime was discovered (People v Danielson, 9 NY3d 342, 349; see
generally People v Bleakley, 69 NY2d 490, 495). In addition, viewing
the evidence in light of the elements of the crime as charged to the
jury (see Danielson, 9 NY3d at 349), we conclude that the verdict is
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KA 11-01473
not against the weight of the evidence (see generally Bleakley, 69
NY2d at 495).
Finally, we conclude that defendant’s waiver of his
Antommarchi rights was valid (see People v Flinn, 22 NY3d 599, 601-
602, rearg denied 22 NY3d 940).
Entered: October 7, 2016 Frances E. Cafarell
Clerk of the Court