| People v Bibbes |
| 2012 NY Slip Op 06431 [98 AD3d 1267] |
| September 28, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v BrandonBibbes, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (John L. Michalski, A.J.),rendered January 4, 2011. The judgment convicted defendant, upon a jury verdict, of burglary inthe second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of burglary inthe second degree (Penal Law § 140.25 [2]), defendant contends that the conviction is notsupported by legally sufficient evidence based on the alleged inadequacy of the evidence of hisintent to commit a crime within the dwelling. That contention is unpreserved for our reviewinasmuch as defendant's motion for a trial order of dismissal was not specifically directed at thealleged deficiency in the People's proof (see People v Gray, 86 NY2d 10, 19 [1995]; People v Roman, 85 AD3d 1630,1630 [2011], lv denied 17 NY3d 821 [2011]). Even if defendant had moved at the closeof the People's proof for a trial order of dismissal directed at the alleged deficiency, hiscontention nevertheless would not be preserved for our review because he did not renew themotion after presenting proof (see People v Hines, 97 NY2d 56, 61 [2001], reargdenied 97 NY2d 678 [2001]). To the extent that defendant is in effect contending that theverdict was inconsistent, i.e., that his acquittal of the attempted rape and sexual abuse chargesnecessarily should have led to an acquittal of the burglary charge, his contention is likewiseunpreserved for our review inasmuch as he failed to object to the alleged inconsistency before thejury was discharged (see People vCarter, 39 AD3d 1226, 1227 [2007], lv denied 9 NY3d 863 [2007]).
In any event, we reject defendant's contention (see generally People v Bleakley, 69NY2d 490, 495 [1987]). A person is guilty of burglary in the second degree under Penal Law§ 140.25 (2) when he or she "knowingly enters or remains unlawfully in a building withintent to commit a crime therein, and when . . . [t]he building is a dwelling." Unlessthe People expressly limit their theory of liability to a specific crime based on the pleadings(see People v Barnes, 50 NY2d 375, 379 n 3 [1980]; People v Kolempear, 267AD2d 327, 327-328 [1999], lv denied 95 NY2d 799 [2000]) or the People effectively areso limited based on a victim's trial testimony (see People v Brown, 251 AD2d 694,695-696 [1998], lv denied 92 NY2d 1029 [1998]), the People are required to allege andprove "only defendant's general intent to commit a crime in the [dwelling] . . . , nothis [or her] intent to [*2]commit a specific crime" (People v Lewis, 5 NY3d 546, 552[2005]). Moreover, the People are not required to prove that the intended crime was in factcommitted (see People v Mackey, 49 NY2d 274, 279 [1980]; People v Porter, 41 AD3d 1185,1186 [2007], lv denied 9 NY3d 963 [2007]; People v Collier, 204 AD2d 1064,1064 [1994], lv denied 84 NY2d 824 [1994]).
Here, the victim testified that, after defendant knocked on her door and told her that he hadan emergency and needed to use her telephone, she opened the door a crack. Defendant then"pushed the door in" and cornered the victim in the hallway, choking and slapping her.According to the victim, defendant made sexual comments to her and began fondling her breastswhile his erect penis was visible through his pants. Defendant left the victim's residence onlyafter she kneed him in the groin. The People did not limit themselves in their pleadings to thetheory that defendant intended to commit a particular crime inside the victim's dwelling. Even if,as defendant contends, the People's evidence effectively limited their theory to an allegation thatdefendant intended to commit rape and sexual abuse, the People were required to prove only thatdefendant intended to commit those crimes (see Porter, 41 AD3d at 1186), andthe jury could infer such intent "based upon the circumstances of the unlawful entry as well as[defendant's] other actions while inside the [dwelling]" (People v Rivera, 41 AD3d 1237, 1238 [2007], lv denied 10NY3d 939 [2008]). Thus, "[i]t is of no moment that the jury acquitted defendant of sexual abusein the [first] degree . . . [T]hat crime requires proof of a completed act, whereasburglary only requires an intent to commit a crime" (People v Williams, 38 AD3d 327, 327-328 [2007], lvdenied 9 NY3d 871 [2007]). Here, the jury could have found that defendant intended to rapethe victim, but that he did not come "dangerously close" to fruition (People v Johnson, 94 AD3d 1563,1564 [2012], lv denied 19 NY3d 962 [2012] [internal quotation marks omitted]). Inaddition, viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally Bleakley, 69 NY2d at 495).
We reject defendant's further contention that Supreme Court erred in permitting the victim totestify that, on the day after the incident, defendant told the victim that he would "cap her and herdaughter" because he would not go to jail for a crime he did not commit, and that defendant thenpulled up his shirt and revealed "like a little gun or something like that in his waist." It is wellestablished that " '[e]vidence of threats made by the defendant against one of the People'switnesses, although evidence of prior bad acts, [is] admissible on the issue of consciousness ofguilt' " (People v Pugh, 236 AD2d 810, 812 [1997], lv denied 89 NY2d 1099[1997]; see People v Arguinzoni, 48AD3d 1239, 1240 [2008], lv denied 10 NY3d 859 [2008]; People v Maddox,272 AD2d 884, 885 [2000], lv denied 95 NY2d 867 [2000]) and, here, we conclude thatthe court did not abuse its discretion in determining that the probative value of that evidenceoutweighed any "unfair prejudice" (People v Dorm, 12 NY3d 16, 19 [2009]). Defendant failedto preserve for our review his further contention that the court should have provided acontemporaneous limiting instruction inasmuch as he failed to request such an instruction (see People v Burnell, 89 AD3d1118, 1121 [2011], lv denied 18 NY3d 922 [2012]; see generally People v Sommerville, 30AD3d 1093, 1094-1095 [2006]). In any event, in its jury charge, the court properlyinstructed the jury that the evidence could be considered only as evidence of defendant'sconsciousness of guilt, and the jury is presumed to have followed that instruction (see People v Wallace, 59 AD3d1069, 1070 [2009], lv denied 12 NY3d 861 [2009]).
Contrary to the further contention of defendant, we conclude that he was not denied effectiveassistance of counsel based on defense counsel's failure to assert the right of defendant to testifybefore the grand jury. "In contrast to a defendant's right to testify at trial, a defendant's right totestify before the grand jury is a limited statutory right" (People v Lasher, 74 AD3d 1474, 1475 [2010], lv denied 15NY3d 894 [2010]), and the "failure of defense counsel to facilitate defendant's testimony beforethe grand jury does not, per se, amount to the denial of effective assistance of [*3]counsel" (People v Simmons, 10 NY3d 946, 949 [2008]; see People vWiggins, 89 NY2d 872, 873 [1996]; People v Perez, 67 AD3d 1324, 1325 [2009], lv denied 13NY3d 941 [2010]). Here, defendant has not established that defense counsel was ineffectivebased on that single failure. In this case, as in Simmons, "defendant failed to establishthat he was prejudiced by the failure of his attorney to effectuate his appearance before the grandjury" (id. at 949; see also Peoplev Ponder, 42 AD3d 880, 881 [2007], lv denied 9 NY3d 925 [2007]). Aside fromdefendant's contention that the error precluded him from "presenting testimony of what actuallyoccurred at the [victim]'s home," "there is no claim that had he testified in the grand jury, theoutcome would have been different" (Simmons, 10 NY3d at 949; see People v Rojas, 29 AD3d 405,406 [2006], lv denied 7 NY3d 794 [2006]). Notably, defendant did not testify at trial (see People v Sutton, 43 AD3d133, 136 [2007], affd sub nom. People v Simmons, 10 NY3d 946, 947 n 1 [2008]).
Finally, the sentence is not unduly harsh or severe. Present—Centra, J.P., Peradotto,Carni, Lindley and Sconiers, JJ.