| People v Watson |
| 2007 NY Slip Op 08566 [45 AD3d 1342] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Alvin Watson,Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Donna A. Milling of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.),rendered July 27, 2005. The appeal was held by this Court by order entered March 16, 2007,decision was reserved and the matter was remitted to Supreme Court, Erie County, for furtherproceedings (38 AD3d 1196 [2007]). The proceedings were held and completed.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously modified on the law by reversing that part convicting defendant of possession ofburglar's tools, granting the motion to dismiss count four of the indictment and dismissing thatcount of the indictment and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a nonjury trial ofburglary in the second degree (Penal Law § 140.25 [2]), criminal possession of stolenproperty in the fifth degree (§ 165.40), criminal mischief in the fourth degree (§145.00 [1]) and possession of burglar's tools (§ 140.35). The conviction arises fromdefendant's unlawful entry into a residence. The police apprehended defendant within minutes ofthe crime, and they recovered several items from defendant that he had stolen from the residence,including two screwdrivers. We previously held this case, reserved decision and remitted thematter to Supreme Court for a reconstruction hearing because we were unable to determine onthe record before us whether defendant signed the waiver of his right to a jury trial in open court,as required by NY Constitution, article I, § 2 and CPL 320.10 (2) (People vWatson, 38 AD3d 1196 [2007]). We conclude that the record of the reconstruction hearingsupports the court's determination that the waiver was signed in open court (see generallyPeople v Terry, 225 AD2d 1058 [1996], lv denied 88 NY2d 886 [1996]).
We reject the further contention of defendant that his waiver of the right to a jury trialwas not knowing, intelligent and voluntary. Although the court's colloquy was interrupted, it isevident from the record that the court emphasized to defendant that he was not obligated toproceed with the nonjury trial (seegenerally People v Smith, 6 NY3d 827, 828 [2006], cert denied 548 US—, 126 S Ct 2971 [2006]).[*2]We agree with defendant, however, that the evidence islegally insufficient to establish that he evinced an intent to use the screwdrivers in thecommission of a burglary or similar offense and thus that the court erred in denying his motion todismiss the count charging possession of burglar's tools (see Penal Law § 140.35;see generally People v Bleakley, 69 NY2d 490, 495 [1987]). We therefore modify thejudgment accordingly. We reject the further contention of defendant that the element of intent inthe burglary count was negated by his intoxication and thus that the burglary conviction is notsupported by legally sufficient evidence (see Penal Law § 15.25). The conflictingevidence with respect to defendant's alleged intoxication presented a credibility determination forthe factfinder to resolve (see People vTricic, 34 AD3d 1319 [2006], lv denied 8 NY3d 850 [2007]).
Finally, we reject defendant's contention that the court abused its discretion in denyingdefense counsel's request for an examination to determine whether defendant was competent toassist in his own defense (see CPL 730.30 [1]). The court conducted an inquiry withrespect to defendant's concerns, and the court had ample opportunity to observe defendant and todetermine "that there [was] no proper basis for questioning the defendant's sanity" (People vArmlin, 37 NY2d 167, 171 [1975]; see People v Tortorici, 92 NY2d 757, 765[1999], cert denied 528 US 834 [1999]). Present—Scudder, P.J., Hurlbutt, Smith,Lunn and Green, JJ.