| People v Rodriguez |
| 2009 NY Slip Op 09319 [68 AD3d 1351] |
| December 17, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JosephRodriguez, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Torrance L. Schmitz of counsel), forrespondent.
Peters, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered June 12, 2008, upon a verdict convicting defendant of the crime of burglary in thesecond degree.
On June 12, 2007, defendant and codefendant Jack Vincent Johnson were arrested whenKahlil Williams reported that they had threatened him with a knife after he failed to pay a drugdebt owed to Johnson. At that time, Williams also informed police that, two weeks earlier,defendant and Johnson had committed a burglary at the apartment that Williams shared with hisgirlfriend, Nancy Hunsinger. Defendant was thereafter indicted with burglary in the seconddegree and, by separate indictment, with criminal possession of a weapon in the third degree andmenacing in the second degree. On the People's motion, and over defendant's objection, CountyCourt consolidated the indictments. Following a jury trial, defendant was convicted of burglaryin the second degree, but acquitted of the weapon possession and menacing charges.
Defendant challenges the legal sufficiency of the evidence supporting his burglaryconviction, arguing that the People failed to prove that he intended to commit a crime at the timeauthorization to be in Hunsinger's apartment was revoked. A person commits the crime ofburglary in the second degree by remaining unlawfully in a dwelling with the intent to commit acrime therein (see Penal Law § 140.25 [2]). When burglary is predicated onunlawfully remaining, a defendant must have had the intent to commit a crime at the timeauthorization to be [*2]on the premises terminates (see Peoplev Gaines, 74 NY2d 358, 363 [1989]; People v Green, 24 AD3d 16, 18 [2005]). Because the element ofintent is subjective, it may be inferred from the circumstances of the case (see People v Ostrander, 46 AD3d1217, 1218 [2007]; People v Green, 24 AD3d at 19; People v Richards, 290AD2d 584, 586 [2002], lv denied 98 NY2d 654 [2002]).
Here, Hunsinger testified that defendant and Johnson appeared at her door looking forWilliams. After informing them that Williams was not home, she permitted them to enter herapartment to talk. Once inside, Johnson stated that Williams owed him money and that he wasgoing to take Hunsinger's property until he was repaid. Hunsinger then instructed defendant andJohnson to leave, but the two instead proceeded to remove property from the apartment andplace it into a large truck. Defendant's assertion that he was unaware of Johnson's intent to takeHunsinger's property until the time when the property was actually taken is contradicted by therecord, as the evidence established that he was present when Johnson informed Hunsinger of hisintent to take her property and when Hunsinger requested that the two leave. Viewing thisevidence in a light most favorable to the People, we find a valid line of reasoning andpermissible inferences that could lead the jury to conclude that defendant harbored the intent tocommit a crime at the time he was told to leave and failed to do so (see People v Gaines,74 NY2d at 363; compare People v Green, 24 AD3d at 18-19; People v Konikov,160 AD2d 146, 152-154 [1990], lv denied 76 NY2d 941 [1990]).
Nor are we persuaded that defendant's conviction is against the weight of the evidence.Where, as here, a different verdict would not have been unreasonable, we "must, like the trier offact below, weigh the relative probative force of conflicting testimony and the relative strengthof conflicting inferences that may be drawn from the testimony" (People v Bleakley, 69NY2d 490, 495 [1987] [internal quotation marks and citations omitted]; see People v Danielson, 9 NY3d342, 348 [2007]). Although Hunsinger did not immediately report the burglary and alsosigned a written statement that no burglary had occurred, she explained that Williams told herthat he would take care of the situation, causing her to forgo reporting the offense, and that shesigned the statement after being informed by Johnson's girlfriend that her belongings would bereturned if she did so. Further, contrary to defendant's suggestion, the fact that Johnson's pleaagreement may have been contingent upon him testifying against defendant does not render histestimony unworthy of belief (seePeople v Vargas, 60 AD3d 1236, 1238 [2009], lv denied 13 NY3d 750 [2009]).Notably, these matters were thoroughly explored during the trial. Mindful that "issues ofcredibility and the weight accorded to evidence are matters to be resolved by the jury" (People v Doherty, 37 AD3d 859,860 [2007], lv denied 9 NY3d 843 [2007]; see People v Hargett, 11 AD3d 812, 814 [2004], lv denied4 NY3d 744 [2004]), and evaluating the evidence in a neutral light while according duedeference to the jury's credibility determinations (see People v Portee, 56 AD3d 947, 949-950 [2008], lvdenied 12 NY3d 820 [2009]; People v Gilliam, 36 AD3d 1151, 1152-1153 [2007], lvdenied 8 NY3d 946 [2007]), we conclude that the verdict was not contrary to the weight ofthe evidence.
Finally, we reject defendant's contention that County Court erred in consolidating the twoindictments. It is within the trial court's discretion to join multiple offenses, "even though basedon separate and distinct criminal transactions, . . . if they are of such a nature thatproof of either offense would be material and admissible as evidence-in-chief upon the trial ofthe other" (People v Bongarzone, 69 NY2d 892, 895 [1987]; see CPL 200.20 [2][b]; People v Griffin, 26 AD3d594, 594-595 [2006], lv denied 7 NY3d 756 [2006]; People v Torra, 309AD2d 1074, 1075 [2003], lv denied 1 NY3d 581 [2003]). Here, evidence related to theburglary charge was relevant and admissible to show defendant's motive and intent with respectto the menacing and [*3]weapon possession charges (seePeople v Bongarzone, 69 NY2d at 895; People v Flowers, 245 AD2d 1088, 1088[1997], lv denied 91 NY2d 972 [1998]). Furthermore, the fact that the jury acquitteddefendant of the weapon possession and menacing charges is strong evidence that the juryseparately considered the proof as to the two incidents and that defendant was not actuallyprejudiced by the joinder (see People vNickel, 14 AD3d 869, 870 [2005], lv denied 4 NY3d 834 [2005]; People vMonte, 302 AD2d 687, 688 [2003]; People v Kelly, 270 AD2d 511, 512-513 [2000],lv denied 95 NY2d 854 [2000]).
Cardona, P.J., Kane, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.