PEOPLE v. CARMEL

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum:

On appeal from a judgment convicting him of burglary in the second degree (Penal Law § 140.25) and other crimes, defendant contends that Supreme Court erred in instructing the jury, with respect to the burglary charge, that "an attached enclosed porch is a part of a dwelling." We reject that contention. Penal Law § 140.25 (2) provides that a person is guilty of burglary in the second degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein and when the building is a dwelling. Penal Law § 140.00 (3) defines "[d]welling" as a "building which is usually occupied by a person lodging therein at night." Here, it is undisputed that, at the time of the crime, the porch that defendant entered was locked against intrusion from the outside, was accessible from other areas of the dwelling, was furnished, and was used by the occupants as a den and breakfast room. We therefore conclude that the court did not err in instructing the jury that an attached enclosed porch is a part of a dwelling ( see People v. Lewoc, 101 A.D.2d 927, 928; cf. People v. Buford, 248 A.D.2d 394, lv denied 92 N.Y.2d 894; People v. Monge, 248 A.D.2d 558, 559, lv denied 92 N.Y.2d 856; People v. Santana, 143 A.D.2d 207).

We reject the further contention that the court erred in denying defendant's motion for a mistrial based on police testimony that defendant invoked his right to counsel during questioning. The jury is presumed to have followed the court's curative instructions and to have disregarded the improper testimony ( see People v. Kimble, 289 A.D.2d 1062, 1063, lv denied 98 N.Y.2d 638; People v. Mims, 278 A.D.2d 822, 823, lv denied 96 N.Y.2d 832; People v. Owens, 214 A.D.2d 480, 481, lv denied 86 N.Y.2d 799), and the court's curative instructions thereby eliminated any prejudice to defendant ( see People v. Brown, 248 A.D.2d 1017; People v. McCray, 227 A.D.2d 900, 901, lv denied 89 N.Y.2d 866; People v. Guise, 179 A.D.2d 1027, lv denied 79 N.Y.2d 1001).