People v. Smith (62 A.D.2d 1043, 1978)

Appeal by defendant from a judgment of the Supreme Court, Westchester County, rendered April 21, 1977, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence. Judgment affirmed. The People proved the defendant’s guilt of burglary in the second degree beyond a reasonable doubt. A person commits the crime of burglary in the second degree when he remains in a dwelling unlawfully "at night” with intent to commit a crime therein (Penal Law, § 140.25). "Night” is defined by the statute as "the period between thirty minutes after sunset and thirty minutes before sunrise” (Penal Law, § 140.00). An appellate court may take judicial notice for the first time on appeal of a fact which was not brought to the attention of the trial court (Hunter v New York, Ontario & Western R.R. Co., 116 NY 615). On September 17, 1976, the date of the alleged burglary, the time of sunset was 6:02 p.m. eastern standard time or 7:02 p.m. eastern daylight savings time. There was ample evidence at the trial that when the victim returned to his apartment and interrupted the burglary in progress, the time was approximately 8:30 p.m. The admission of the codefendant’s statement implicating the defendant was not error. The defendant’s right of confrontation was satisfied when the codefendant took the stand at the trial (see People v Payne, 35 NY2d 22). While the right to a separate trial is broader than the right to confrontation, there was no prejudice in view of the substantial independent proof of the defendant’s guilt (cf. People v Payne, supra). The sentence was not excessive. We have also considered the arguments made by the defendant pro se and we affirm the conviction. Suozzi, J. P., Cohalan, Hargett and Hawkins, JJ., concur.