| People v Ostrander |
| 2007 NY Slip Op 10410 [46 AD3d 1217] |
| December 27, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JeffreyOstrander, Appellant. |
—[*1] Donald F. Cerio Jr., District Attorney, Wampsville (Jeffrey A. Aumell of counsel), forrespondent.
Kane, J. Appeal from a judgment of the County Court of Madison County (DiStefano, J.),rendered July 12, 2006, convicting defendant following a nonjury trial of the crime of burglary inthe second degree.
Defendant entered a home belonging to some family friends without their permission, but ranout when he heard a woman scream. Following a nonjury trial, defendant was convicted ofburglary in the second degree. County Court sentenced defendant, as a second violent felonyoffender, to 12 years incarceration and five years of postrelease supervision. Defendant appeals.
Defendant's conviction was supported by legally sufficient evidence and was not against theweight of the evidence. As relevant here, the People were required to prove that defendantknowingly entered a dwelling with intent to commit a crime therein (see Penal Law§ 140.25 [2]). The People did not need to prove which particular crime defendant intendedto commit, nor that the intended crime was actually committed (see People v Mackey, 49NY2d 274, 279 [1980]; see also Peoplev Johnson, 38 AD3d 1057, 1058 [2007]). In his statements to police, defendantacknowledged that he knowingly entered a dwelling, but claimed that he thought the friends wereaway and he was just checking the house for them. Thus, defendant's intent was the onlycontested element.[*2]
Based on the subjective nature of that element, intent maybe inferred from the circumstances of the intruder's unlawful entry, unexplained presence on thepremises, and actions and statements when confronted by police or the property owner (seePeople v Moore, 285 AD2d 827, 828 [2001], lvs denied 97 NY2d 685 [2001], 98NY2d 678 [2002]; People v Mitchell, 254 AD2d 830, 831 [1998], lv denied 92NY2d 984 [1998]). Defendant parked down the road from the house, rather than in the driveway,and a path through brush led from his vehicle to the house. It was a hot summer night, butdefendant wore a dark sweatshirt with the hood over his head. He entered the home after 11:00p.m. on a night when he knew that the husband and children would be out of town, leaving thewife home alone. His knowledge that the wife would be home conflicted with his statement thathe was checking the house because the family was away. Despite his claim that he was checkingthe house to protect it for his friends, he fled after hearing a scream and did not thereafter call hisfriends or the police. When the police first approached him regarding this incident, defendantstated that he was at home that night, but after further questioning he acknowledged being at thehouse. This record evidence was legally sufficient to establish defendant's intent. Upon weighingthis evidence and all inferences reasonably drawn from it, we conclude that the verdict was notagainst the weight of the evidence (see People v Johnson, 38 AD3d at 1058; People v Porter, 35 AD3d 907,909 [2006], lv denied 8 NY3d 926 [2007]; People v Moore, 285 AD2d at 829).
County Court did not abuse its sentencing discretion. Defendant's sentence, which was lessthan the permitted maximum, was appropriate given his invasion of a family's home and his priorviolent felony conviction (see People v Johnson, 38 AD3d at 1060; People v Jackson, 25 AD3d 1012,1014 [2006], lv denied 6 NY3d 849 [2006]).
Mercure, J.P., Mugglin, Rose and Lahtinen, JJ., concur. Ordered that the judgment isaffirmed.