| People v Alsaifullah |
| 2012 NY Slip Op 04428 [96 AD3d 1103] |
| June 7, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v TalibAlsaifullah, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered March 17, 2011, upon a verdict convicting defendant of the crimes of burglary in thethird degree and petit larceny.
A police detective saw defendant exiting a warehouse pushing a bicycle through a brokenglass door. Following a trial, defendant was found guilty of burglary in the third degree and petitlarceny. County Court sentenced him, as a second felony offender, to 3½ to 7 years inprison for the burglary count and a concurrent jail term of one year for petit larceny. Defendantappeals.
County Court did not abuse its discretion in refusing to entertain defendant's pro se motion todismiss the indictment. Because defendants are not entitled to hybrid representation, courts mayrefuse to recognize any efforts by a counseled defendant to act on his or her own behalf (seePeople v Rodriguez, 95 NY2d 497, 501-502 [2000]; People v Miles, 8 AD3d 758, 759 [2004], lv denied 3NY3d 678 [2004]). Courts have the discretion to determine whether to entertain a pro se motionfiled by a represented defendant (see People v Rodriguez, 95 NY2d at 502). The court didnot abuse that discretion by refusing to entertain defendant's pro se motion.
The verdict was supported by legally sufficient evidence and was not against the weight[*2]of the evidence. A detective testified that he noticed a light onin a warehouse at 2:30 a.m. The bottom half of the glass door of the warehouse was broken. Thedetective saw defendant push a bicycle out of the building under the metal push bar in the middleof the broken door. Defendant then mounted the bicycle and rode away. When the detectiveidentified himself as a police officer and told defendant to stop, defendant continued to rideaway. Another officer saw defendant feverishly pedaling away from the detective. Arepresentative of the building's owner testified that the warehouse was locked at night anddefendant did not have authorization to be in the building or to take a bicycle from the building.This testimony, along with the inferences to be drawn from defendant's conduct and thecircumstances (see People vSturdevant, 74 AD3d 1491, 1492 [2010], lv denied 15 NY3d 810 [2010]),constituted legally sufficient evidence to prove that defendant stole property (see PenalLaw § 155.25) and that he knowingly entered a building with the intent to commit a crimetherein (see Penal Law § 140.20; People v Woodrow, 91 AD3d 1188, 1190 [2012]). Givingdeference to the jury's credibility determinations, the verdict was also not against the weight ofthe evidence (see People v Gilliam,36 AD3d 1151, 1153 [2007], lv denied 8 NY3d 946 [2007]).
County Court did not err in refusing defendant's requests for jury charges. Because defendantrequested that the court charge a lesser included offense, and trespassing in the third degree isindeed a lesser included offense of burglary in the third degree (see People v Blim, 63NY2d 718, 720 [1984]), the court was required to give the charge if a reasonable view of theevidence would support a finding that defendant committed a trespass but did not commit aburglary (see CPL 300.50 [1], [2]). A glass door in the warehouse was broken, the recordlacks "evidence suggesting a noncriminal purpose for entry" and defendant was seen exiting thebuilding with a bicycle that he was stealing (People v Martinez, 9 AD3d 679, 681 [2004], lv denied 3NY3d 709 [2004]; see People vMiles, 55 AD3d 955, 956 [2008], lv denied 11 NY3d 928 [2009]). Thus, areasonable view of the evidence would not support a finding that defendant entered the buildingwithout an intent to commit any crime other than trespass and, upon seeing the bicycle, thenformed an intent to steal it (compare People v Miller, 288 AD2d 698, 699 [2001], with People v Barringer, 54 AD3d442, 444 [2008], lv denied 11 NY3d 830 [2008]). The evidence did not support anintoxication charge (see People v Rodriguez, 76 NY2d 918, 920-921 [1990]; People v Park, 12 AD3d 942, 943[2004]), but did support a charge regarding consciousness of guilt for his conduct of fleeing thescene (see People v Lockerby, 178 AD2d 805, 807 [1991], lv denied 80 NY2d834 [1992]; see also People vCarney, 23 AD3d 772, 774-775 [2005]). Hence, the court properly charged the jury.
Counsel provided defendant with effective assistance. Contrary to defendant's argument,counsel did object to the admission of photographs into evidence, but County Court admittedthem over counsel's objection. Counsel questioned the police witnesses about their failure topreserve the integrity of the crime scene and advanced a legitimate defense theory focused on thecircumstantial nature of the People's case. Considering all of the circumstances, counsel providedmeaningful representation (see People vBruno, 63 AD3d 1297, 1298 [2009], lv denied 13 NY3d 858 [2009]).
Defendant's remaining arguments have been reviewed and found to be lacking in merit.
Spain, J.P., Kavanagh, Stein and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.