| People v Shay |
| 2011 NY Slip Op 05333 [85 AD3d 1708] |
| June 17, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Daniel P.Shay, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Heather A. Parker of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Frederick G. Reed, A.J.), renderedNovember 2, 2007. The judgment convicted defendant, upon a jury verdict, of burglary in thesecond degree, criminal mischief in the third degree, assault in the third degree, menacing in thesecond degree and coercion in the second 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 of,inter alia, burglary in the second degree (Penal Law § 140.25 [2]). Contrary to defendant'scontention, the evidence is legally sufficient to support the burglary conviction inasmuch as thePeople established that he entered or remained unlawfully in the victim's apartment with theintent to commit a crime therein (see id.; see generally People v Bleakley, 69NY2d 490, 495 [1987]). The victim of the burglary testified at trial that she told defendant thathe "needed to leave" her apartment, where he had been residing with her permission for no longerthan a week. The victim further testified that, on the night of the incident, she told defendant "togo away," but he pushed open the door and forced his way into the apartment and assaulted her.We thus conclude that the evidence is legally sufficient to permit the inferences that defendantwas not licensed or privileged to enter the victim's apartment on the date in question (seePenal Law § 140.00 [5]; see generally People v Graves, 76 NY2d 16, 20 [1990]; People v Bonney, 69 AD3d 1116,1119-1120 [2010], lv denied 14 NY3d 838 [2010]; People v Maycumber, 8 AD3d 1071 [2004], lv denied 3NY3d 678 [2004]), and that he entered with the intent to assault the victim. The evidence is alsolegally sufficient to support the inference that defendant entered the premises knowing that hispermission with respect thereto had been revoked (see generally Maycumber, 8 AD3d at1072; People v Dela Cruz, 162 AD2d 312, 313 [1990], lv denied 76 NY2d 892[1990]). Viewing the evidence in light of the elements of the crime of burglary in the seconddegree as charged to the jury (see Peoplev Danielson, 9 NY3d 342, 349 [2007]), we reject defendant's further contention that theverdict with respect to that count is against the weight of the evidence (see generallyBleakley, 69 NY2d at 495).
Defendant failed to preserve for our review his further contention that County Courtpenalized him for exercising his right to a trial by imposing a longer term of incarceration thanthat offered during plea negotiations (see People v Brink, 78 AD3d 1483, 1485 [2010], lv denied16 NY3d 742 [2011], reconsideration denied 78 AD3d 828 [2011]; People v Lombardi, 68 AD3d1765 [2009], lv denied 14 NY3d 802 [2010]). In any event, that [*2]contention is without merit. Upon our review of the record, weperceive " 'no retaliation or vindictiveness against the defendant for electing to proceed to trial' "(People v Dorn, 71 AD3d 1523,1524 [2010]; see People v Brown,67 AD3d 1427 [2009], lv denied 14 NY3d 839 [2010]). Finally, the sentence is notunduly harsh or severe. Present—Scudder, P.J., Smith, Carni, Sconiers and Green, JJ.