| People v Bergman |
| 2010 NY Slip Op 01281 [70 AD3d 1494] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Gary T.Bergman, Appellant. |
—[*1] Gary T. Bergman, defendant-appellant pro se. Donald H. Dodd, District Attorney, Oswego (Michael G. Cianfarano of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.), renderedApril 18, 2008. The judgment convicted defendant, upon a jury verdict, of burglary in the thirddegree and criminal mischief in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofburglary in the third degree (Penal Law § 140.20) and criminal mischief in the third degree(§ 145.05 [2]). The conviction arises from an incident in which defendant forcibly entereda bar after hours by breaking the glass windows in two entryway doors and pulling the alarmsystem off the wall. We reject defendant's contention that the evidence is legally insufficient tosupport the conviction (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). "Inburglary cases [based on circumstantial evidence, as is the case herein], the defendant's intent tocommit a crime within the premises may be inferred beyond a reasonable doubt from thecircumstances of the entry" (People v Gates, 170 AD2d 971, 971-972 [1991], lvdenied 78 NY2d 922 [1991] [internal quotation marks omitted]; see People vGaines, 74 NY2d 358, 362 n 1 [1989]). The fact that defendant used force in obtaining entryto the bar by breaking the glass windows in the entryway doors "amply supports the inferencethat he had criminal intent[, and t]hat inference is buttressed by numerous other factors,primarily defendant's unexplained and unauthorized presence on the premises" in the early hoursof the morning (Gates, 170 AD2d at 972). Similarly, with respect to the criminalmischief count, defendant's intent to damage the property may be inferred from thecircumstances of the incident (seePeople v Bryant, 13 AD3d 1170 [2004], lv denied 4 NY3d 884 [2005]).
Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally Bleakley, 69 NY2d at 495). Based on the testimony of the witnesses, thephotographs depicting the damaged property, and the DNA evidence placing defendant at thescene of the incident, it cannot be said that the jury failed to give the evidence the weight itshould be accorded (see [*2]generally id.). Contrary tothe further contention of defendant in his main and pro se supplemental briefs, we conclude thatthe evidence, the law, and the circumstances of this case, viewed in totality and as of the time ofthe representation, establish that he received meaningful representation (see generally Peoplev Baldi, 54 NY2d 137, 147 [1981]; People v Workman, 277 AD2d 1029, 1032[2000], lv denied 96 NY2d 764 [2001]).
Finally, because defendant failed to include in the record on appeal the motion papersconcerning the alleged denial of his right to a speedy trial, we are unable to review the merits ofhis contention concerning that alleged denial, raised in his pro se supplemental brief (seePeople v Highsmith, 254 AD2d 768, 770 [1998], lv denied 92 NY2d 983, 1033[1998]; see also People v Velez, 223 AD2d 414 [1996], lv denied 88 NY2d 855[1996]; People v Calderon, 223 AD2d 380 [1996], lv denied 87 NY2d 1017[1996]). Present—Centra, J.P., Peradotto, Carni, Pine and Gorski, JJ.