| People v Burch |
| 2007 NY Slip Op 09450 [45 AD3d 1188] |
| November 29, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Joseph E.Burch, Jr., Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Peter N. DeLucia of counsel), forrespondent.
Cardona, P.J. Appeal from a judgment of the County Court of Broome County (Mathews, J.),rendered April 18, 2005, convicting defendant following a nonjury trial of the crimes of burglaryin the second degree, attempted sexual assault in the first degree and unlawful imprisonment inthe second degree.
Following a nonjury trial, defendant was convicted of burglary in the second degree,attempted sexual assault in the first degree and unlawful imprisonment in the second degree. Thecharges stem from a February 2004 incident in which the victim, a young woman, was enteringher apartment when defendant pushed his way inside with her and locked the door. As the victimattempted to open the door, defendant, who was directly behind her, tugged her pants partiallydown and thrust against her while fumbling with the front of his own pants. The victim managedto open the door and flee her apartment seeking help. She then returned with a neighbor and,after determining that no one else was present, she locked herself inside alone. Shortly thereafter,someone attempted to enter her apartment. With a metal spatula in hand, the victim opened thedoor and defendant was again in her presence. She confronted him with screams and stompingand succeeded in chasing him away. She then called the police who apprehended defendant ashort time later.
Defendant contends that there is insufficient evidence to support the charges and that, in[*2]any event, his conviction on all counts is against the weight ofthe evidence given his extreme intoxication at the time of the incident. To the extent thatdefendant challenges the legal sufficiency of the evidence presented, in the absence of a motionto dismiss, this issue has not been preserved for our review (see People v White, 41 AD3d 1036, 1037 [2007]; People v Lozada, 35 AD3d 969,969-970 [2006], lv denied 8 NY3d 947 [2007]). In any event, were we to consider thisissue, we would find that, viewed in a light most favorable to the People, the evidence wassufficient to lead a rational person to conclude that all the essential elements of each crime wereproven beyond a reasonable doubt (see People v Cabey, 85 NY2d 417, 420 [1995]; People v Singh, 16 AD3d 974, 976[2005], lv denied 5 NY3d 769 [2005]). Although there was testimony from variouswitnesses that described defendant as visibly intoxicated, it was for County Court, as the trier offact, to determine whether the extent of defendant's intoxication negated the element of intent (see People v Thomson, 13 AD3d805, 807 [2004], lv denied 4 NY3d 836 [2005]; People v Becker, 288 AD2d766, 767 [2001], lv denied 97 NY2d 751 [2002]). Moreover, upon the exercise of ourfactual review power, we are satisfied that proper weight was given to the evidence ofdefendant's intoxication and that the verdict on each crime was not against the weight of theevidence (see People v Bleakley, 69 NY2d 490, 495 [1987]).
We also find defendant's contention that he was denied his constitutional right to theeffective assistance of counsel to be without merit. Viewed in totality and at the time of therepresentation, none of the alleged errors deprived defendant of meaningful representation (see People v Ross, 43 AD3d 567,570 [2007]; People v Singh, 16 AD3d at 978).
Mercure, Crew III, Mugglin and Rose, JJ., concur. Ordered that the judgment is affirmed.