| People v Arce |
| 2010 NY Slip Op 01389 [70 AD3d 1196] |
| February 18, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Angel Arce,Appellant. |
—[*1] Gwen Wilkinson, District Attorney, Ithaca (Gary Surdell of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Tompkins County (Rowley,J.), rendered January 26, 2009, upon a verdict convicting defendant of the crimes of burglary inthe second degree and petit larceny.
On June 26, 2008, defendant was seen by a next door neighbor climbing through the livingroom window of a residence located in the City of Ithaca, Tompkins County. Initially, theneighbor observed defendant picking through trash in the alleyway adjacent to the building, butwhen defendant opened the window and entered the building, the neighbor called the police.When the police arrived, they found defendant on the second floor of the residence carrying ablue bag that contained two cameras, an iPod and other personal property that had been takenfrom an upstairs bedroom in the premises.[FN1]Defendant was arrested after it was confirmed that he did not reside or have permission to be inthe building and the property found in the blue bag belonged to one of the building's residents.Defendant waived indictment and agreed to proceed by superior court information whichcharged him with burglary in the second degree and grand [*2]larceny in the fourth degree.[FN2]
At trial, defendant admitted that he had entered the building and stole the property from theupstairs bedroom, but claimed that he entered the premises only because he believed it wasabandoned and unoccupied and, at the time, was simply looking for used bottles and cans that hecould redeem for their deposit. He denied entering the building with a larcenous intent andclaimed that he only decided to take the property found in the blue bag after he was actuallyinside the premises and realized that people were, in fact, living there. Defendant was foundguilty of burglary in the second degree and petit larceny and was subsequently sentenced toconcurrent prison terms of 3½ years and one year, respectively, plus four years ofpostrelease supervision. Defendant now appeals.
Initially, defendant argues that County Court committed reversible error by failing toproperly respond to a question posed by the jury during its deliberations. Specifically, the juryasked, "Could the unlawful removal of deposit bottles and/or cans from within a dwellingconstitute petit larceny?" After conferring with counsel, the court answered "yes" to the jury'squestion. Defendant objected and argued that the court's answer to this question did notconstitute an adequate or sufficient response to the jury's inquiry (see CPL 310.30).Defendant does not contend that the answer given by the court was inaccurate or that the takingof these cans could not constitute a larceny;[FN3]instead, he argues that the jury was, in fact, asking if defendant entered the building only withthe intent of taking property he believed to be abandoned, would that serve to qualify as thenecessary criminal intent needed to elevate a trespass to a burglary. While this may have been anissue for the jury's consideration during its deliberations, it was not a question posed by it to thecourt, nor is there any indication in the record that the question as worded failed to properly statethe issue for which the jury sought clarification. On the contrary, the question as asked was clearand unambiguous and the court's response to it was an accurate statement of applicable law.Viewed in connection with the court's charge on the law delivered to the jury prior to itsdeliberations, the answer as given satisfied the court's obligation to provide a meaningfulresponse to its inquiry (see People v Malloy, 55 NY2d 296, 302-304 [1982], certdenied 459 US 847 [1982]; Peoplev Carpenter, 52 AD3d 1050, 1051 [2008], lv denied 11 NY3d 735 [2008],cert denied 556 US —, 129 S Ct 1613 [2009]) and did not constitute an abuse ofthe court's discretion (see People v Steinberg, 79 NY2d 673, 684-685 [1992]).
As for defendant's challenge to the legal sufficiency of the evidence, we note that, asdefendant admits, he failed to make an appropriate motion at trial and, as such, this issue has notbeen preserved for our review (see People v Adamek, 69 AD3d 979, 980 [2010]; People v Williams, 67 AD3d1050, 1051 [2009]). Moreover, we discern no [*3]reason toexercise our interest of justice jurisdiction (see People v Hilliard, 49 AD3d 910, 912 [2008], lv denied10 NY3d 959 [2008]).
Defendant also claims that his conviction for burglary in the second degree was notsupported by the weight of the credible evidence introduced at trial. In that regard, he does notdeny that after entering the premises, he proceeded to an upstairs bedroom where he stole thepersonal property found in the blue bag, but claims that he only formed this intent after he hadentered the premises and realized that people, in fact, resided there. To obtain a conviction forburglary, the People must establish that when defendant entered the building, he did so with theintent to commit a crime therein (see Penal Law § 140.25 [2]; People v Lewis, 5 NY3d 546, 552[2005]). However, the People are not required to "allege or establish what particular crime wasintended" at the time of the unlawful entry (People v Lewis, 5 NY3d at 552). Defendant'sintent as he entered the building may be inferred by the way he gained entry, his conduct after hewas inside the premises and any statements that he subsequently made when confronted by thepolice (see People v Vanbergen, 68AD3d 1249, 1250 [2009]; People vCaston, 60 AD3d 1147, 1149 [2009]; People v Ostrander, 46 AD3d 1217, 1218 [2007]).
In that regard, defendant testified that he routinely collected used bottles and cans to beredeemed for their deposit and that it was his practice to approach a home, knock on the frontdoor and ask the occupants for any used bottles and cans that they had in their possession. Here,defendant acknowledged that he never approached the front door of the premises or sought toinquire of the building's occupants if they had any empty bottles or cans. Instead, he crawledthrough the side window to gain entry to the building without first making an effort to determineif it was occupied, and he admits that, as he looked through the window, he saw furniture in theroom, including a coffee table and a couch that he pushed to the side while in the process ofmaking his entry. Also, the blue bag that defendant was carrying when arrested did not belong toany of the building's occupants and, despite his contention to the contrary, appears to have beenin his possession before he gained entry. Therefore, having evaluated the evidence in a neutrallight while according due deference to the jury's credibility determinations (see People v Hampton, 64 AD3d872, 874 [2009], lv denied 13 NY3d 796 [2009]; People v Higgins, 57 AD3d 1315, 1317 [2008], lv denied12 NY3d 817 [2009]), we find that the verdict was not contrary to the weight of the evidence (see People v Brisson, 68 AD3d1544, 1546 [2009]; People v Caston, 60 AD3d at 1149).
Cardona, P.J., Peters, Rose and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: The house is used for studenthousing, has 10 bedrooms and, at the time of the incident, had three students residing in it.
Footnote 2: Prior to trial, the DistrictAttorney reduced the grand larceny charge to petit larceny.
Footnote 3: Larceny is defined as thatcircumstance when a person "with intent to deprive another of property . . .wrongfully takes . . . such property from an owner thereof" (Penal Law §155.05 [1]). The definition of property includes "any . . . personal property. . . or any article, substance or thing of value" (Penal Law § 155.00 [1]).