| People v Jamieson |
| 2011 NY Slip Op 07113 [88 AD3d 1298] |
| October 7, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v WilliamJamieson, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michelle L. Cianciosa of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), rendered July16, 2009. The judgment convicted defendant, upon a nonjury verdict, of burglary in the seconddegree, criminal mischief in the fourth degree and petit larceny (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a nonjury verdict of, interalia, burglary in the second degree (Penal Law § 140.25 [2]), defendant contends that theevidence of his unlawful entry into the victim's home and intent to commit a crime at the time ofthe entry is insufficient to support the burglary conviction. Defendant's contention is unpreservedfor our review inasmuch as he failed to move for a trial order of dismissal at the close of thePeople's case (see People v Gray, 86 NY2d 10, 19 [1995]; People v Brown, 67 AD3d 1369[2009], lv denied 14 NY3d 886 [2010]). In any event, that contention is without merit.The evidence establishes "that defendant gained entry to the victim's home by means ofdeception, trickery or misrepresentation," and thus it is legally sufficient to establish the unlawfulentry (People v Mitchell, 254 AD2d 830, 831 [1998], lv denied 92 NY2d 984[1998]). The victim testified that defendant, who was wearing a hard hat and a vest when heapproached her home, informed the victim that he was "from the cable company" and that he wasthere to "see if [her] setup was okay." In addition, "[d]efendant's intent to commit a crime [at thetime of entry] may be inferred from the circumstances of the entry, from defendant's unexplainedor unauthorized presence on the premises and from defendant's actions and assertions whenconfronted" (id.). Here, defendant's intent to commit a crime at the time of entry may beinferred from evidence that, inter alia, he posed as a cable company employee to gain entry to thevictim's home and engaged in a physical altercation with her brother after that individualconfronted defendant concerning the property taken from the victim's home.Present—Fahey, J.P., Peradotto, Lindley, Sconiers and Green, JJ.