| People v March |
| 2012 NY Slip Op 04427 [96 AD3d 1101] |
| June 7, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Arthur L.March, Jr., Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Nicole M.R. Smith of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Chemung County (Hayden, J.),rendered October 29, 2010, upon a verdict convicting defendant of the crime of burglary in thethird degree.
After receiving a report that an individual had been seen early in the morning crawlingthrough a broken window of a church, police responded to the scene and arrested defendant afterfinding him in the basement of the St. Paul's Missionary Baptist Church in the City of Elmira,Chemung County. During the ensuing investigation, it was determined that defendant did nothave permission to be in the church at that hour—4:30 a.m.—and that a safe insidethe church had been forced open. After a jury trial, defendant was convicted of burglary in thethird degree and sentenced, as a second felony offender, to a prison term of 3 to 6 years.Defendant now appeals.
Defendant claims that the evidence was legally insufficient to support the judgment ofconviction for burglary in the third degree because no proof was admitted at trial that, when heentered the church, he intended to steal the safe. However, defendant did not make this argumentwhen he moved to dismiss this charge at the close of the People's case at trial or at any timethereafter; as such, he has not preserved this issue for our review (see People v Carncross, 14 NY3d319, 324-325 [2010]; People vGreen, 84 AD3d 1499, 1500 [2011], lv denied 17 NY3d [*2]953 [2011]; People v Lumnah, 81 AD3d 1175, 1177 [2011], lv denied16 NY3d 897 [2011]). More importantly, the People were not required, as defendant contends, toprove that at the point of his unlawful entry he harbored the specific intent of stealing the safethat was located in the pastor's office. Instead, to establish that defendant committed burglary inthe third degree, the People had to present competent evidence that, when he entered the church,he did so unlawfully and with the intent to commit a crime therein (see Penal Law§ 140.20; People v Brisson,68 AD3d 1544, 1546 [2009], lv denied 14 NY3d 798 [2010]; People v Bethune, 65 AD3d 749,751 [2009]).
Also, defendant's contention that his conviction for burglary in the third degree was againstthe weight of the evidence does not require extended discussion. Credible evidence waspresented that when defendant was found inside the church, he did not have permission to be onthe premises, his hand was injured, there was blood on his clothing, he was sweating profuselyand, as previously noted, the safe in the pastor's office had been moved, forced open and therewas an obvious attempt to steal property from the safe. This evidence, coupled with theeyewitness testimony as to how defendant gained access to the premises, provided ample supportfor the jury's conclusion that defendant was guilty of burglary in the third degree (see People v Moyer, 75 AD3d1004, 1006 [2010]).
In addition, defendant did not object to County Court's charge to the jury, and the claim hemakes now, that the court did not correctly instruct the jury regarding his state of mind when heentered the building, has not been preserved for our review (see CPL 470.05 [2];People v Vargas, 88 NY2d 363, 381 [1996]; People v Heier, 90 AD3d 1336, 1339 [2011], lv denied 18NY3d 994 [2012]). We also reject defendant's contention that he was denied the effectiveassistance of counsel at trial. In that regard, we note that trial counsel identified gaps in thePeople's proof and, in particular, questioned why DNA evidence had not been presented by thePeople since blood was found at the scene as well as on defendant's person after his arrest. Also,counsel, through cross-examination of the People's witnesses, suggested that another individualwas at the scene—the eyewitness who called the police—who had an opportunity toenter the church and break open the safe before the police apprehended defendant in the churchbasement. Accordingly, defendant was provided meaningful representation (see People vBenevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]; People v Muriel, 75 AD3d 908,911 [2010], lv denied 15 NY3d 922 [2010]; People v Bruno, 63 AD3d 1297, 1298 [2009], lv denied 13NY3d 858 [2009]).
Finally, we reject defendant's claim that the sentence imposed was harsh and excessive. Hehas an extensive criminal record that includes numerous felony convictions and has failed topresent any extraordinary circumstances that would warrant a modification of this sentence (see People v Blackman, 90 AD3d1304, 1310-1311 [2011]; People vTorres, 81 AD3d 995 [2011]).
Spain, J.P., Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.