| People v Vasquez |
| 2010 NY Slip Op 01705 [71 AD3d 1179] |
| March 4, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v RaymondVasquez, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered January 10, 2007, convicting defendant following a nonjury trial of the crime ofburglary in the second degree.
Following a nonjury trial, County Court found defendant guilty of burglary in the seconddegree and sentenced him as a persistent violent felony offender to a prison term of 16 years tolife. Defendant appeals.
Contrary to defendant's contention, legally sufficient evidence was produced at trial tosupport the conviction. Specifically, defendant contends that there was insufficient proof that heentered the victim's home intending to commit a crime therein (see Penal Law §140.25 [2]). "In that regard, we note that 'intent may be inferred from the circumstances of theintruder's unlawful entry, unexplained presence on the premises, and actions and statementswhen confronted by police or the property owner' " (People v Vanbergen, 68 AD3d 1249, 1250 [2009], quoting People v Ostrander, 46 AD3d1217, 1218 [2007]). Here, the unrefuted testimony at trial establishes that defendant enteredthe victim's apartment without her permission, startled her while she was in the bathroom andtold her that he had no money and was hungry. They then went to the kitchen, where the victimgave defendant a small sum of money and offered him food and cigarettes. He [*2]took some money and a cigarette from her and then left. Accordingto the victim, sometime after the incident, she noticed that her checkbook and debit card weremissing and that some of her jewelry was out of place. Testifying on his own behalf, defendantdenied taking anything from the victim's apartment other than the money and cigarette that shehad given him. According to defendant, he had entered the victim's apartment intending to leavea note with her for her neighbor, who he said he had come to see but who was not at home. At nopoint during the incident, however, did defendant tell the victim of his purported intent to leave amessage for the neighbor. Nor did he tell the police that this had been his intent when theyquestioned him; rather, he denied that he had even entered the victim's apartment. Viewed in thelight most favorable to the People, this evidence is legally sufficient to support an inference thatdefendant intended to commit a crime upon entering the victim's apartment (see People vVanbergen, 68 AD3d at 1250; People v Bethune, 65 AD3d 749, 752 [2009]). Further, afterreviewing the evidence in a neutral light, and according deference to County Court's assessmentof the witnesses' credibility, we are satisfied that the verdict is not against the weight of theevidence (see People v Roberts, 63AD3d 1294, 1296-1297 [2009]).
Next, County Court's Sandoval compromise was reasonable, the court havingproperly considered defendant's history of criminal acts and weighed their probative value withthe risk of unfair prejudice to defendant (see People v Hayes, 97 NY2d 203, 207-208[2002]). Although some of the convictions were similar in nature to the instant offense, thatsimilarity did not require their preclusion. "The fact that the defendant chose to specialize in onetype of criminal activity did not shield him from impeachment by use of prior convictions" (People v Mack, 6 AD3d 551[2004] [citations omitted], lv denied 3 NY3d 660 [2004]).
Upon our review of the record and the circumstances of this case, we are unpersuaded thatdefendant's trial counsel was ineffective (see People v Baldi, 54 NY2d 137, 147 [1981]).Although defendant offers on appeal two documents that he claims should have been presentedat trial to controvert facts underlying two of his prior criminal convictions, those documents are,at best, extrinsic evidence of a collateral issue (see People v Alvino, 71 NY2d 233,247-248 [1987]), and defendant fails to demonstrate the absence of a " 'strategic or otherlegitimate explanation[ ]' " for counsel's failure to offer them at trial (People v Caban, 5 NY3d 143, 152[2005], quoting People v Rivera, 71 NY2d 705, 709 [1988]).
Finally, having been convicted of a class C violent felony offense and sentenced as apersistent violent felony offender, defendant received the minimum legally permissible sentenceof 16 years to life (see Penal Law § 70.08 [2], [3] [b]), which defeats his claim thatthe sentence is harsh and excessive (see People v Milot, 305 AD2d 729, 732 [2003],lv denied 100 NY2d 585 [2003]). Defendant's remaining contentions, including his claimof prosecutorial misconduct, were not properly preserved for appellate review.
Peters, J.P., Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.