| People v Freeman |
| 2013 NY Slip Op 00640 [103 AD3d 1177] |
| February 1, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vGerald Freeman, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David Panepinto of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.),rendered September 29, 2011. The judgment convicted defendant, upon a jury verdict, ofburglary in the third degree, possession of burglar's tools and resisting arrest.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of,inter alia, burglary in the third degree (Penal Law § 140.20), defendant contendsthat the evidence is legally insufficient to establish that he intended to commit a crimewhen he unlawfully entered the vacant house he was charged with burglarizing.Defendant's contention lacks merit (see generally People v Bleakley, 69 NY2d490, 495 [1987]). The People were required to prove "only defendant's general intent tocommit a crime in the [building] . . . , not his intent to commit a specificcrime" (People v Lewis, 5NY3d 546, 552 [2005]). Moreover, the People were not required to prove thatdefendant actually committed the intended crime (see People v Porter, 41 AD3d 1185, 1186 [2007], lvdenied 9 NY3d 963 [2007]). The jury was entitled to infer defendant's intent tocommit a crime inside the building from the evidence that he broke a window to gainentry (see generally People v Barnes, 50 NY2d 375, 381 [1980]; People vGrant, 162 AD2d 1021, 1022 [1990]), as well as from the evidence of hissimultaneous possession of burglar tools (see People v Wright, 92 AD2d 722[1983]). The jury was also entitled to infer defendant's intent from his "actions andassertions when confronted by the police" (People v Mitchell, 254 AD2d 830,831 [1998], lv denied 92 NY2d 984 [1998]), which included fighting with thepolice and threatening one of the arresting officers.
Finally, in view of the fact that defendant has a criminal record dating back to 1973,including three prior felony convictions, as well as the fact that he violently resistedarrest, we perceive no basis to exercise our power to reduce the sentence as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [b]).Present—Smith, J.P., Peradotto, Lindley, Sconiers and Valentino, JJ.