| People v McKinney |
| 2007 NY Slip Op 09799 [46 AD3d 705] |
| December 11, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Michael A. McKinney, Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea, HeatherRyan, and Bridget Rahilly Steller of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Hayes, J.),rendered May 21, 2001, convicting him of burglary in the second degree and robbery in thesecond degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the People (see People v Contes,60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guilt,beyond a reasonable doubt, of the crimes of burglary in the second degree and robbery in thesecond degree. Further, upon the exercise of our factual review power (see CPL 470.15[5]), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]). "A license or privilege to enter or remain in a building which is only partly open to thepublic is not a license or privilege to enter or remain in that part of the building which is not opento the public" (Penal Law 140.00 [5]). Here, the weight of the evidence supports the jury'sdetermination that the defendant went to a non-public area of a doctor's office and entered a roomused as an employee lounge and kitchen, marked "Employees Only," with the intent of stealingany valuable items he found there, and that he stole a purse from a pocketbook that had been leftthere (see People v Salvatore, 178 AD2d 566 [1991]; People v Bopp, 151 AD2d590 [1989]). Further, the weight of the evidence supports the jury's determination that thedefendant pushed a glass door into a pursuing employee, knocking her to the ground and injuringher back, for the purpose of preventing or overcoming [*2]resistance to his retention of the purse (see People vBrandley, 254 AD2d 185 [1998]; People v Brown, 243 AD2d 363 [1997]).Resolution of issues of credibility is primarily a matter to be determined by the jury, which sawand heard the witnesses, and its determination should be afforded great deference on appeal (see People v Romero, 7 NY3d633, 644-645 [2006]).
In his supplemental pro se brief, the defendant argues that he was denied the opportunity toappear before the grand jury and testify in his own behalf in violation of his rights under theSixth Amendment of the United States Constitution and CPL 190.50 (5) (a). However, thisargument is based upon matter dehors the record, and cannot be reviewed on direct appeal (see People v Coleman, 37 AD3d489, 490 [2007], lv denied 9 NY3d 864 [2007]).
The defendant's remaining contentions, including those raised in his supplemental pro sebrief, are without merit. Miller, J.P., Ritter, Florio and Dillon, JJ., concur.