| People v Smalls |
| 2012 NY Slip Op 00720 [92 AD3d 420] |
| February 2, 2012 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v AndreSmalls, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Beth Fisch Cohen of counsel), forrespondent.
Judgment, Supreme Court, New York County (John Cataldo, J.), rendered November 21,2008, convicting defendant, after a jury trial, of burglary in the second degree and assault in thesecond and third degrees, and sentencing him, as a second felony offender, to an aggregate termof 5½ years, unanimously affirmed.
The verdict was based on legally sufficient evidence. Defendant became enraged at anemployee who was working at the front desk of a storage facility. Defendant struck the employeein the face with a hard plastic object, causing a cut, and pursued the employee through a series ofnonpublic portions of the facility. In doing so, defendant knocked down a manager of the facility,causing a broken wrist. The still-irate defendant confronted the first employee, pushed and pokedhim, and threw another hard object, striking the employee in the head.
Defendant was properly convicted of burglary. Defendant's course of conduct establishes thatwhen he entered the restricted part of the facility, he did so with intent to commit a crime (People v Lewis, 5 NY3d 546, 552[2005]). Accordingly, the intent element of burglary was satisfied.
Defendant argues that the People limited themselves to the theory that the intended crimewas an assault on the front-desk employee. That claim is unpreserved and we decline to review itin the interest of justice. As an alternative holding, we also reject it on the merits. The Peoplenever expressly limited themselves to that theory (see People v Romero, 84 AD3d 695 [2011]), and the court's chargecontained no such limitation. In any event, the evidence fully supports the theory that defendantchased the employee into the nonpublic area for the purpose of continuing his assault on thatperson.
Defendant was also properly convicted of third-degree assault, based on his initial attack onthe employee at the front desk. Defendant threw a hard plastic pamphlet holder at the employee'sface from only a few feet away. The object left a cut near the employee's eye. The employeetestified that he was bleeding, that the cut was swollen and painful, and that the pain worsenedsoon after the incident. The evidence supports an inference that the cut caused "more than slightor trivial pain" (see People vChiddick, 8 NY3d 445, 447 [2007]; see also People v Guidice, 83 NY2d 630,636 [1994]).[*2]
Defendant failed to preserve his argument that there wasinsufficient evidence that he intended to cause physical injury to the employee, and we decline toreview it in the interest of justice. As an alternative holding, we find that defendant's intent couldbe readily inferred from his conduct.
The court properly declined to submit third-degree criminal trespass as a lesser includedoffense of burglary. There was no reasonable view of the evidence that defendant unlawfullyentered the nonpublic area, but did so without intent to commit a crime (see People vMongen, 157 AD2d 82 [1990], appeal dismissed 76 NY2d 1015 [1990]).Concur—Mazzarelli, J.P., Friedman, Catterson, Renwick and RomÁn, JJ.