| People v Cubino |
| 2008 NY Slip Op 03058 [50 AD3d 312] |
| April 3, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Ronald Cubino, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Jung Park of counsel), forrespondent.
Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered April 1,2005, convicting defendant, after a jury trial, of burglary in the second degree (three counts),criminal possession of stolen property in the fifth degree and possession of burglar's tools, andsentencing him, as a persistent violent felony offender, to an aggregate term of 22 years to life,unanimously modified, on the law, to the extent of reducing the conviction under the third countof the indictment to criminal trespass in the second degree and reducing the sentence thereon to aterm of one year, and, as a matter of discretion in the interest of justice, to the extent of reducingthe sentences on the remaining burglary convictions to concurrent terms of 16 years to life, andotherwise affirmed.
With respect to the third count, the evidence was legally insufficient to establish the elementof intent to commit a crime. Although the People need not specify what crime a defendantintended to commit, in order to elevate criminal trespass to a burglary, the proof must show adefendant intended to commit some other crime contemporaneous with the trespass (People vMahboubian, 74 NY2d 174, 193 [1989]). The evidence relating to the third count clearlyestablished that when defendant entered the basement at issue his intent was to find a hidingplace after having committed one of the other two burglaries at a nearby building. Defendant wasapprehended as he sat hiding behind a door in that basement. There is no evidence that heintended to commit any other crime in the building at issue, and passively hiding from police isnot a crime under these circumstances.
Since the court's reasonable doubt instruction cannot be viewed as expressly shifting theburden of proof, the narrow exception to the preservation requirement does not apply (Peoplev Thomas, 50 NY2d 467, 471-472 [1980]), and we decline to review defendant'sunpreserved challenge to that instruction in the interest of justice. As an alternative holding, wealso reject it on the merits. The reasonable doubt charge, viewed as a whole adequately conveyedthe appropriate principles (see People v Cubino, 88 NY2d 998 [1996]; People vAntommarchi, 80 NY2d 247, 251-252 [1992]).
During defendant's confession to one of the burglaries, he volunteered that "these types ofburglaries are classified as violent." Defendant sought to redact this phrase on the ground that[*2]it constituted evidence that he had a criminal history;however, we find that argument to be without merit (see e.g. People v Flores, 210AD2d 1 [1994], lv denied 84 NY2d 1031 [1995]). Defendant's remaining contentionsregarding this evidence, including his constitutional claim, are unpreserved and we decline toreview them in the interest of justice. As an alternative holding, we also reject them on themerits.
Defendant's constitutional challenge to the procedure under which he was sentenced as apersistent violent felony offender is unpreserved and we decline to review it in the interest ofjustice. As an alternative holding, we also reject it on the merits (see People v Rosen, 96NY2d 329 [2001], cert denied 534 US 899 [2001]; Almendarez-Torres v UnitedStates, 523 US 224 [1998]). We find the sentence excessive to the extent indicated. Ourmodification results in a new aggregate term of 16 years to life. Concur—Saxe, J.P.,Sweeny, McGuire and Acosta, JJ.