Majority
p. 1044The People of the State of New York, Respondent, v Gary Nigro, Appellant. [639 NYS2d 222]
Memorandum: We reject the contention of defendant that his conviction of burglary in the second degree following a nonjury trial is based on legally insufficient evidence and is against the weight of the evidence (see, People v Bleakley, 69 NY2d 490 , 495). The resolution of credibility is for the trier of fact {see, People v Sutton, 108 AD2d 942 ; People v La Borde, 76 AD2d 869 ). We further reject the contention that defendant was denied a fair trial because County Court "deprived” defense counsel of the opportunity to give a summation. Defense counsel did not request an opportunity to give
p. 1045
a summation (see generally, People v Parker, 118 AD2d 598 , lv denied 67 NY2d 1055 ). Moreover, immediately before resting his case, defense counsel moved to dismiss the indictment on the ground that the People failed to prove defendant’s guilt beyond a reasonable doubt. Under those circumstances, defendant was not denied a fair trial when the court rendered its verdict without defense counsel having given a summation. Neither was defendant denied a fair trial by the failure of the court to advise defense counsel of the lesser included offenses it would consider. The record shows that the court considered criminal trespass as a lesser included offense at defense counsel’s request. (Appeal from Judgment of Erie County Court, Rogowski, J. — Burglary, 2nd Degree.) Present — Pine, J. P., Lawton, Fallon, Callahan and Doerr, JJ.
Cases cited
- People v. Bleakley 69 NY2d 490 at 495 p. 1044
- People v. Parker 118 AD2d 598 p. 1045