| People v Barringer |
| 2008 NY Slip Op 06511 [54 AD3d 442] |
| August 7, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JohnBarringer, Also Known as John Vail, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Mara Y. Grace of counsel), forrespondent.
Peters, J.P. Appeal from a judgment of the County Court of Broome County (Mathews, J.),rendered June 14, 2007, upon a verdict convicting defendant of two counts of the crime ofburglary in the third degree.
Upon responding to a report of a break-in at Giant Market in the City of Binghamton,Broome County, during the early morning hours of April 1, 2006, police learned that the glassentrance door was broken, the cash register was damaged and approximately 27 cartons ofcigarettes were missing. A few hours later, a security alarm was activated at Crescent Cleanersand Laundry, located near Giant Market, and police immediately responded to the scene. Afterdiscovering a broken window in the front of the building and an unlocked door in the back, a K9officer entered and found defendant hiding inside.
Defendant was thereafter charged with the crimes of burglary in the third degree and petitlarceny with respect to the Giant Market incident and burglary in the third degree in connectionwith the Crescent Cleaners incident. Upon the close of evidence at the ensuing trial, CountyCourt denied defendant's request to charge trespass as a lesser included offense to burglary in thethird degree relating to the Crescent Cleaners break-in. The jury returned a [*2]verdict of guilty on both burglary counts but was unable to reach averdict on the petit larceny charge. At sentencing, the court granted the People's motion todismiss the petit larceny count and sentenced defendant, as a second felony offender, to twoconcurrent prison terms of 3 to 6 years. Defendant now appeals.
Defendant raises both a legal sufficiency and weight of the evidence challenge to the burglaryconviction arising out of the incident at Giant Market. However, by failing to make a timelydetailed motion to dismiss directed at the specific deficiencies in the evidence he now claims,defendant has failed to preserve the legal sufficiency issue for our review (see People v Balram, 47 AD3d1014, 1015 [2008], lv denied 10 NY3d 859 [2008]; People v Carter, 40 AD3d 1310,1311 [2007], lv denied 9 NY3d 873 [2007]). As to the weight of the evidence, because adifferent verdict would not have been unreasonable, we must " 'weigh the relative probative forceof conflicting testimony and the relative strength of conflicting inferences that may be drawnfrom the testimony' " (People v Bleakley, 69 NY2d 490, 495 [1987], quoting Peopleex rel. MacCracken v Miller, 291 NY 55, 62 [1943]; see People v Alteri, 49 AD3d 918, 920 [2008]). Viewing theevidence in a neutral light and according appropriate deference to the jury's assessment ofwitness credibility and demeanor, we conclude that the verdict was not against the weight of theevidence (see People v Romero, 7NY3d 633, 643-644 [2006]; Peoplev Gilliam, 36 AD3d 1151, 1152-1153 [2007], lv denied 8 NY3d 946 [2007]).
The proof established that the store's glass entrance door was shattered and that a landscapingbrick was found just inside. Still photographs collected from the store's video surveillance systemcaptured defendant within the store during the time of the break-in. Moreover, testimonyrevealed that the store's office had been ransacked, that the cash register had been torn off of thecounter and that approximately 27 cartons of cigarettes were missing. Thus, defendant's knowingand unlawful entry and intent to commit a larceny were readily inferable from the circumstancesof his entry and his conduct within the store (see People v Barnes, 50 NY2d 375, 381[1980]; People v Mackey, 49 NY2d 274, 280 [1980]; People v Thomas, 38 AD3d 1134, 1136 [2007], lv denied 9NY3d 852 [2007]; People v Covington, 274 AD2d 840, 842 [2000], lv denied 95NY2d 962 [2000]). To the extent that defendant also claims that this verdict was inconsistentwith the jury's inability to reach a verdict on the petit larceny count, we find this claim to bewithout merit "since a conviction for burglary only requires proof of a larcenous 'intent', notproof of the actual commission of the crime of larceny" (People v Dodson, 96 AD2d1116, 1117 [1983]; see People v Barnes, 50 NY2d at 379; see also People vJames, 110 AD2d 1037, 1038 [1985]).
We are also unpersuaded by defendant's argument that County Court erred in denying hisrequest to charge trespass as a lesser included offense to the charge of burglary in the third degreearising out of the Crescent Cleaners incident. In order to establish entitlement to a charge on alesser included offense, defendant was required to satisfy a two-part test. "First, defendant mustestablish that it is impossible to commit the greater crime without concomitantly committing thelesser offense by the same conduct. Secondly, there must be a reasonable view of the evidence tosupport a finding that the defendant committed the lesser offense but not the greater" (Peoplev Van Norstrand, 85 NY2d 131, 135 [1995] [citations omitted]; see CPL 300.50;People v Barney, 99 NY2d 367, 371 [2003]; People v Hernandez, 42 AD3d 657, 658 [2007]). While there is nodispute that the first prong of the test has been met (see People v Mandigo, 188 AD2d717, 717-718 [1992], lv denied 81 NY2d 888 [1993]; see also People v Wright,255 AD2d 199, 200 [1998], lv denied 92 NY2d 1041 [1998]), there is no reasonableview of the evidence to [*3]support a finding that defendant didnot possess the intent to commit a crime when he entered Crescent Cleaners. The proof showedthat defendant was unlawfully on the premises and that the store's private office had been brokeninto, the handle on the safe had been severely tampered with and the cash register had beenforced onto the floor. Considering this evidence, together with the testimony that a hammer wasfound in proximity to defendant when he was apprehended, we find no rational basis in therecord upon which the jury could have rejected such evidence while accepting only the proof ofdefendant's unlawful entry (see People v Blim, 63 NY2d 718, 720-721 [1984]; Peoplev Mandigo, 188 AD2d at 717-718).
Finally, we find unavailing defendant's contention that his sentence is harsh and excessive.Given defendant's lengthy criminal history, which includes multiple theft crimes, we perceiveneither an abuse of discretion nor the existence of any extraordinary circumstances warranting areduction of the sentence in the interest of justice (see People v Carter, 40 AD3d 1211, 1213 [2007], lv denied9 NY3d 864 [2007]; People vJohnson, 12 AD3d 941, 941 [2004]).
Spain, Carpinello, Lahtinen and Malone Jr., JJ., concur. Ordered that the judgment isaffirmed.