| People v Hunter |
| 2008 NY Slip Op 08034 [55 AD3d 1052] |
| October 23, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Noel Hunter,Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George (Heather M. Abissi, New York ProsecutorsTraining Institute, Albany, of counsel), for respondent.
Rose, J. Appeal from a judgment of the County Court of Warren County (Hall, Jr., J.), renderedMarch 21, 2007, upon a verdict convicting defendant of the crime of burglary in the second degree.
Following our remittal of this case for a new trial (32 AD3d 611 [2006]), defendant was againconvicted of burglary in the second degree and County Court sentenced him, as a persistent violentfelony offender, to a prison term of 20 years to life. He now appeals.
The evidence at trial was legally sufficient to prove that defendant unlawfully entered a building withthe intent to commit a crime therein (see Penal Law § 140.25 [2]), as he was observedon his hands and knees with his head in a broken basement window of the home, followed by hiscutting of the first floor window screens and then fleeing when he was confronted by the victim. Whileno one saw him break the basement window, his unlawful entry and intent to commit a crime canreasonably be inferred from these circumstances (see People v Ostrander, 46 AD3d 1217, 1218 [2007]; People v Jacobs, 37 AD3d 868, 870[2007], lv denied 9 NY3d 923 [2007]). Further, having viewed the evidence in a neutral lightand accorded appropriate deference to the jury's assessment of witness credibility, we conclude thatthe verdict was not against the weight of the evidence (see People v Romero, 7 NY3d 633, 643-644 [2006]; People v Gilliam, 36 AD3d 1151,1152-1153 [2007], lv denied 8 NY3d 946 [2007]).[*2]
Next, County Court's Sandoval compromise waseminently reasonable, having reviewed defendant's prior criminal acts and appropriately balanced theirprobative value against the risk of unfair prejudice to defendant (see People v Hayes, 97NY2d 203, 207-208 [2002]; People v Long, 269 AD2d 694, 695 [2000], lv denied94 NY2d 950 [2000]; People v Grady,40 AD3d 1368, 1370 [2007], lv denied 9 NY3d 923 [2007]; People v Blair, 32 AD3d 613, 614[2006]). Despite defendant's numerous convictions of crimes similar to the one charged, County Courtpermitted the People to inquire only about two of his prior convictions and precluded the People fromquestioning him about their underlying facts. To the extent that the court also permitted the People toquestion defendant about whether he lied on a job application, this was probative of his credibility andpast failure to tell the truth and was so dissimilar to the charged crime that it had little potential for unfairprejudice (see People v Grady, 40 AD3d at 1370).
Defendant's further contention that County Court erred in refusing to give an interested witnesscharge to the jury is belied by the record. In fact, the court gave a general interested witness chargeafter defendant asked for that. To the extent that defendant now argues that County Court should haveprovided the jury with a charge specifically tailored to the victim, the issue is unpreserved (seeCPL 470.05 [2]; People v Gilbo, 52AD3d 952, 954 [2008]) and, in any event, unpersuasive.
Finally, given defendant's history of committing similar crimes and the absence of extraordinarycircumstances, we find no abuse of County Court's discretion or other grounds warranting modificationof the sentence imposed (see People vCarter, 50 AD3d 1318, 1322 [2008], lv denied 10 NY3d 957 [2008]; People v Jackson, 25 AD3d 1012,1014 [2006], lv denied 6 NY3d 849 [2006]; People v Lockhart, 12 AD3d 842, 845 [2004], lv denied 5NY3d 765 [2005]).
Peters, J.P., Lahtinen, Kane and Kavanagh, JJ., concur. Ordered that the judgment is affirmed.