| People v Dove |
| 2011 NY Slip Op 07754 [89 AD3d 1153] |
| November 3, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DonaldM. Dove, 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 14, 2010, upon a verdict convicting defendant of the crimes of burglary in the firstdegree and assault in the third degree.
Defendant was charged by indictment with burglary in the first degree and assault in the thirddegree based upon allegations that he unlawfully entered the apartment of a female acquaintance andphysically assaulted her. Following a jury trial, he was found guilty as charged. Defendant thereafterunsuccessfully moved pursuant to CPL 330.30 to set aside the verdict and was sentenced as apersistent violent felony offender to an aggregate prison term of 20 years to life. Defendant appeals.
Defendant's sole contention on appeal is that the conviction of burglary in the first degree is againstthe weight of the evidence. We disagree. As is relevant here, a person is guilty of burglary in the firstdegree when he or she "knowingly enters or remains unlawfully in a dwelling with intent to commit acrime therein, and when, in effecting entry or while in the dwelling . . . he [or she]. . . [c]auses physical injury to any person who is not a participant in the crime" (PenalLaw § 140.30 [2]). Here, the victim testified at trial that, on the day of the incident, defendantrepeatedly called her and requested that she meet him, which she refused to [*2]do. Later that evening, the victim called 911 when she saw defendantstanding outside her apartment building. According to the victim, she was on the phone with the 911operator when defendant suddenly emerged from her front bedroom and attacked her, causing herphysical injury. The recording of the 911 call made by the victim was played at trial and providedcorroboration of the victim's testimony. Although no evidence of forced entry into the apartment wasfound, testimony of the victim's neighbor established that it was possible to climb up the front porch ofthe victim's building onto the second floor balcony and, from there, enter the front bedrooms through abalcony door or window. The victim testified that the door on her balcony was not locked on the day ofthe incident. From all of this evidence, the jury could conclude that defendant entered the victim'sapartment without her permission and physically assaulted her therein. Accordingly, while a differentverdict would not have been unreasonable, viewing the foregoing evidence in a neutral light andaccording deference to the jury's credibility assessments, we find that the verdict convicting defendantof burglary in the first degree is supported by the weight of the evidence (see People vBleakley, 69 NY2d 490, 495 [1987]; People v Johnson, 20 AD3d 808, 810-811 [2005], lv denied 5NY3d 853 [2005]).
Rose, J.P., Kavanagh, Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed.