| People v Cajigas |
| 2011 NY Slip Op 01933 [82 AD3d 544] |
| March 17, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Norman Cajigas, Appellant. |
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Judgment, Supreme Court, New York County (Marcy L. Kahn, J.), rendered February 21,2008, convicting defendant, after a jury trial, of attempted burglary in the second degree andthree counts of criminal contempt in the first degree, and sentencing him, as a second violentfelony offender, to an aggregate term of 6½ to 8 years, unanimously affirmed.
The court properly denied defendant's application pursuant to Batson v Kentucky(476 US 79 [1986]), in which he asserted the prosecutor discriminated against male panelists.Defendant's claim that the court improperly applied the step two standard of gender neutrality atstep three, where the issue is pretextuality, is unpreserved (see e.g. People vJenkins, 302 AD2d 247, 248 [2003], lv denied 100 NY2d 583 [2003]), and wedecline to review it in the interest of justice. As an alternative holding, we also reject it on themerits (see People v Hameed, 88 NY2d 232, 237 [1996], cert denied 519 US1065 [1997]). Regardless of whether "the court may have used the wrong nomenclature indescribing its step-three ruling" (Peoplev Washington, 56 AD3d 258, 259 [2008], lv denied 11 NY3d 931 [2009]), itimplicitly credited the prosecutor's explanations and concluded that the nondiscriminatoryreasons provided by the prosecutor for the challenges in question were not pretextual. Thisfinding is supported by the record and is entitled to great deference (see People vHernandez, 75 NY2d 350 [1990], affd 500 US 352 [1991]).
Defendant challenges the sufficiency and weight of the evidence supporting the attemptedburglary conviction, with respect to the element of criminal intent. We reject those challenges (see People v Danielson, 9 NY3d342, 348-349 [2007]). Defendant engaged in a pattern of violent and hostile conduct towardthe victim, his former girlfriend, both before and after she obtained an order of protection barringdefendant from any contact with her. The evidence establishes that when defendant attempted toenter the victim's apartment he did so with intent to commit a crime other than the unlawful entryitself. When an order of protection is in effect, the unlawful entry itself cannot be used as the solepredicate crime to establish the intent element of burglary; however, the intent element will besatisfied if the defendant entered the premises with the intent to violate another provision of theorder of protection, distinct from the trespass (People v Lewis, 5 NY3d 546, 551-552 [2005]). Here, the evidencepermitted the inference that, beyond the attempted unlawful entry, defendant intended to violatethe provision of the order [*2]requiring that he stay away from thevictim, or intended to engage in other conduct prohibited by the order (see People v Carpio, 39 AD3d 433[2007], lv denied 9 NY3d 873 [2007]). In any event, the totality of the evidence,including defendant's past conduct toward the victim, also permitted the jury to infer that heattempted to enter the apartment for the purpose of assaulting her or committing some other actthat was criminal even without the order of protection.
The court's main charge and supplemental charges properly instructed the jury that intendingto trespass, without more, would not establish the criminal intent element of second-degreeburglary, but that the jury also had to determine that defendant intended to commit a crime insidethe apartment, which could include violating another provision of the order of protection (seeLewis, 5 NY3d at 552). The court correctly declined to charge that the criminal intentelement could not be satisfied by an intent to commit an act that would be innocuous if the orderof protection did not prohibit it. We find nothing in Lewis that would require such aninstruction. Concur—Gonzalez, P.J., Tom, Acosta, Richter and RomÁn, JJ.