| People v Pierce |
| 2013 NY Slip Op 03358 [106 AD3d 1198] |
| May 9, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vAnthony J. Pierce, Appellant. |
—[*1] Joseph A. McBride, District Attorney, Norwich (Michael J. Genute of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Chenango County(Sullivan, J.), rendered December 16, 2011, upon a verdict convicting defendant of thecrime of burglary in the second degree.
Defendant was indicted and charged with burglary in the second degree inconnection with an incident that occurred at a residence located at 22 Beebe Avenue inthe Town of Norwich, Chenango County. At the conclusion of a two-day jury trial,defendant was convicted as charged and thereafter was sentenced as a second felonyoffender to six years in prison followed by five years of postrelease supervision.Defendant now appeals, contending only that the jury's verdict is not supported by legallysufficient evidence.
In reviewing defendant's legal sufficiency claim, we must determine whether theevidence, viewed in the light most favorable to the People, could lead a rational trier offact to conclude that each and every element of the charged crime had been provenbeyond a reasonable doubt (see People v Bleakley, 69 NY2d 490, 495 [1987]; People v Jackson, 2 AD3d893, 895-896 [2003], lv denied 1 NY3d 629 [2004]). As is relevant here, aperson is guilty of burglary in the second degree when he or she "knowingly enters orremains unlawfully in a building with [the] intent to commit a crime therein" and "[t]hebuilding [in question] is a dwelling" (Penal Law § 140.25 [2]; see People v Merritt, 96 AD3d1169, 1171 [2012], lv denied 19 NY3d 1027 [2012]). The intent elementmay be inferred from, among other things, "the intruder's unlawful [*2]entry, unexplained presence on the premises, and actionsand statements when confronted by police or the property owner" (People v Ostrander, 46 AD3d1217, 1218 [2007]; seePeople v Caston, 60 AD3d 1147, 1149 [2009]).
At trial, a witness who lived four houses down and across the street from 22 BeebeAvenue testified that, sometime after 12:30 p.m. on the afternoon in question, sheobserved defendant (whom she had known for four or five years) and Daniel Sabines(whom she had known for approximately 20 years) walking down the north side ofBeebe Avenue. The witness spoke to Sabines, and Sabines returned her greeting.Although defendant and Sabines purportedly were going door to door collectingsignatures for a local political candidate, the witness testified that neither of them askedher to sign a petition on the candidate's behalf. Another neighbor, who livedapproximately 40 feet from 22 Beebe Avenue, testified that at approximately 12:35 p.m.that day, she observed two young men—one of whom she later identified asdefendant—walking past her open window. According to this witness, theseindividuals appeared to be "out of place," and she took note of them because they werenot talking to one another; instead, they were "very quietly looking around" theneighborhood. Although this witness made direct eye contact with defendant, neither henor Sabines asked her to sign a petition, and she did not observe any petitions in theirrespective hands.
Additionally, the owner of 22 Beebe Avenue testified that while he was resting in anupstairs bedroom, he heard a noise and, upon investigating, discovered anindividual—later identified as Sabines—rummaging through his belongings.Once confronted, Sabines fled the house via the back door and the homeowner gavechase. When the homeowner reached the street, he asked a nearby work crew if they hadseen anyone running from the house. One of the workers indicated that he had seen aman—clad in shorts and a shirt—jump out of a window on the second floorof the house, dart across the roof, leap to the ground and take off running, leading thehomeowner to conclude that there had been two intruders.
Defendant was apprehended in the parking lot of the former P & C supermarketwithin minutes of the homeowner's 911 call and, according to the police officer who tookhim into custody, admitted to being with Sabines in the general vicinity of thecrime.[FN1]Defendant thereafter was transported back to Beebe Avenue for a show-up identificationand, although the construction worker could not identify defendant as the person he sawemerge from the second-story window of 22 Beebe Avenue, he advised the police thatboth defendant and the man he saw running from that address were wearing "the righttype of clothes," i.e., "shorts and a shirt." Finally, one of the investigators testified thatSabines sent defendant a text shortly before the two of them were apprehended asking,"Where are you?"
Viewing this evidence in the light most favorable to the People, we are satisfied thatthere is a "valid line of reasoning and permissible inferences [that] could lead a rationalperson to the conclusion reached by the jury" (People v Bleakley, 69 NY2d at495), i.e., that defendant was the second intruder—notwithstanding certaininconsistencies in the trial testimony regarding the clothing worn by defendant on the dayin question and/or the worker's description of the individual he saw fleeing the residence(see generally People v Haile M., 160 AD2d 1027, 1027[*3][1990], lv denied 76 NY2d 860 [1990]).[FN2]As we are satisfied that the jury's verdict is supported by legally sufficient evidence, thejudgment of conviction is affirmed.
Rose, J.P., Lahtinen and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: A short time later,another officer observed Sabines exiting the door of the same supermarket and took himinto custody.
Footnote 2: Although the indictmentalleged that defendant was acting in concert with Sabines, "there is no legal distinctionbetween liability as a principal or criminal culpability as an accomplice" (People vRivera, 84 NY2d 766, 769 [1995]) and, therefore, the People could offer proof as toeither theory at trial (cf. Peoplev Robinson, 53 AD3d 681, 683-684 [2008], lv denied 11 NY3d 794[2008]).