| People v Vanbergen |
| 2009 NY Slip Op 09092 [68 AD3d 1249] |
| December 10, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ScottVanbergen, Appellant. |
—[*1] Richard J. McNally, Jr., District Attorney, Troy (Kelly L. Egan of counsel), forrespondent.
Cardona, P.J. Appeal from a judgment of the County Court of Rensselaer County (McGrath,J.), rendered November 14, 2007, upon a verdict convicting defendant of the crimes of burglaryin the second degree and criminal mischief in the fourth degree.
On this appeal, defendant first challenges the weight and sufficiency of the evidencesupporting his conviction of burglary in the second degree. As that crime was charged in thiscase, the People were required to prove that defendant knowingly and unlawfully entered thevictim's home with the intent to commit a crime therein (see Penal Law § 140.25[2]; People v Lewis, 5 NY3d546, 552 [2005]; People vPorter, 35 AD3d 907, 909 [2006], lv denied 8 NY3d 926 [2007]). Defendantcontends that the evidence was not legally sufficient in that the People failed to establish that heintended to commit a crime upon entering the victim's home. In that regard, we note that "intentmay be inferred from the circumstances of the intruder's unlawful entry, unexplained presence onthe premises, and actions and statements when confronted by police or the property owner" (People v Ostrander, 46 AD3d1217, 1218 [2007]; see People v Moore, 285 AD2d 827, 828 [2001], lvdenied 97 NY2d 685 [2001]). Furthermore, the People need not "allege or establish whatparticular crime was intended" (People v Lewis, 5 NY3d at 552 [internal quotationmarks and citations omitted]).
Here, the victim testified that at approximately 7:30 a.m. on May 2, 2007 he was [*2]awakened from a sound sleep by the ringing of his doorbell,followed by knocking on his front door. As he was rising, he heard voices outside his bedroomwindow, then knocking at his back door. He observed two men outside, both wearing blackhooded sweatshirts with the hoods up. When the victim did not answer the back door, the menreturned to the front door and the knocking resumed, albeit much more loudly, making the doorshake. The victim called the police and, while he was on the telephone, one of the men kicked inthe front door, breaking the doorjamb. The man ran into the house calling the victim's name andshouting, "They're after me." Frightened, the victim grabbed a one-foot-by-six-foot board andstruck the man twice in the head. A struggle ensued, during which the man held the victim in aheadlock. The victim broke free, grabbed the man by the throat and pinned him to the couch, atwhich point he had a clear view of the man's face. The man then got loose and fled. The victimlater identified the man as defendant, who he had met on one occasion during the previous yearwhen defendant power-washed his fence. Viewed in the light most favorable to the People, thereis legally sufficient evidence from which to infer that defendant intended to commit a crime uponentering the victim's house (see Peoplev Terry, 44 AD3d 1157, 1158 [2007], lv denied 10 NY3d 772 [2008]; People v Brown, 24 AD3d 812,813 [2005], lv denied 6 NY3d 774 [2006]). Additionally, upon our independent reviewof the record as a whole, and according due deference to the jury's credibility determinations, wefind that the conviction is not against the weight of the evidence (see People v Terry, 44AD3d at 1158; People v Brown, 24 AD3d at 813-814).
Turning to defendant's argument that the testimony of Detective Sergeant Michael Parrowimpermissibly bolstered the victim's identification of defendant, we note that this issue was notpreserved by an appropriate objection at trial. His further contention that counsel's failure toobject constituted ineffective assistance is without merit, since Parrow neither directly norimplicitly indicated that the victim had previously identified defendant (see People vBuie, 86 NY2d 501, 510 [1995]; People v Holt, 67 NY2d 819, 821 [1986]).
Finally, given defendant's extensive criminal history and the violent nature of the instantoffense, we are not persuaded that the sentence imposed upon the burglary conviction—15years in prison with five years of postrelease supervision—is harsh and excessive, and wedecline to disturb it (see People vCarter, 50 AD3d 1318, 1323 [2008], lv denied 10 NY3d 957 [2008]).
Peters, Kane, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.