| People v Rumley |
| 2013 NY Slip Op 00361 [102 AD3d 894] |
| January 23, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Yakik Rumley, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Jeanette Lifschitz, and Rona I. Kugler of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Hollie, J.), rendered December 21, 2010, convicting him of burglary in the seconddegree (two counts) and criminal mischief in the fourth degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is modified, on the law, by reducing the convictions ofburglary in the second degree under counts one and two of the indictment to a convictionof criminal trespass in the second degree and vacating the sentences imposed thereon; asso modified, the judgment is affirmed, and the matter is remitted to the Supreme Court,Queens County, for further proceedings in accordance herewith.
The evidence adduced at trial was legally insufficient to support the defendant'sconvictions of burglary in the second degree under counts one and two of the indictment.Viewing the evidence in the light most favorable to the People, there was no valid line ofreasoning and permissible inferences that could have led a rational jury to conclude that,at the time of his unlawful entry, the defendant intended to commit a crime in the subjectbuilding (see People v Gaines, 74 NY2d 358 [1989]).
The evidence showed that the defendant and his girlfriend, to whom he had oncebeen engaged, were involved in a three-year long tumultuous relationship in which theywould often break up and then reconcile. After the couple traveled to Virginia inFebruary 2009, the girlfriend decided that she wanted to end the relationship and,therefore, did not visit the defendant at his apartment or return his telephone calls. Afterthe girlfriend avoided him for a week, the defendant went to the apartment of the friendwith whom the girlfriend was staying, knocked on the door, and asked to speak to thegirlfriend. The girlfriend's friend refused to permit the defendant to enter the apartment.The defendant repeated his request, which was again rejected. This scenario replayedseveral times, at which point the defendant became angry, forced his way into theapartment, and physically injured the girlfriend's friend in the process. After entering theapartment, the defendant spoke with the girlfriend and asked her to come back to him,but she refused and asked him to leave. After [*2]shouting, breaking a telephone, and making angry threats,the defendant left the apartment. He was later arrested and charged with two counts ofburglary in the second degree and two counts of criminal mischief in the fourth degree.Following a jury trial, the defendant was convicted of the burglary charges and one countof criminal mischief in the fourth degree.
We conclude that the People failed to present any evidence that would support afinding that the defendant entered the building "with intent to commit a crime therein"(Penal Law § 140.25). Thus, the evidence was legally insufficient to establish thedefendant's guilt of burglary in the second degree (see People v Gaines, 74 NY2d358 [1989]; People vAveni, 100 AD3d 228 [2012]). However, the evidence was legally sufficient toestablish criminal trespass in the second degree (see Penal Law § 140.15).Accordingly, the convictions must be reduced to a conviction of criminal trespass in thesecond degree, and the sentences imposed under counts one and two of the indictmentvacated (see People v Carlajal, 308 AD2d 455 [2003]; People v Person,239 AD2d 612 [1997]; cf.People v Freeman, 98 AD3d 682 [2012]; People v Colon, 169 AD2d835 [1991]). Although the defendant has already served the maximum sentence thatcould be imposed for criminal trespass in the second degree (see Penal Law§ 70.15 [1]), we nevertheless remit the matter to the Supreme Court, QueensCounty, for the imposition of an authorized sentence for that offense.
The defendant's remaining arguments either are without merit or need not beaddressed in light of our determination. Dillon, J.P., Balkin, Austin and Cohen, JJ.,concur.