| People v Sterina |
| 2013 NY Slip Op 05142 [108 AD3d 1088] |
| July 5, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v CarlaC. Sterina, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Matthew Dunham of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Frances A.Affronti, J.), rendered March 15, 2011. The judgment convicted defendant, upon a juryverdict, of burglary in the first degree (two counts) and assault in the second degree (twocounts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon a juryverdict of two counts each of burglary in the first degree (Penal Law § 140.30 [2],[3]) and assault in the second degree (§ 120.05 [2], [6]). We reject defendant'scontention that Supreme Court erred in refusing to charge criminal trespass in the seconddegree (§ 140.15 [1]) as a lesser included offense of burglary in the first degree(§ 140.30 [2], [3]). Contrary to defendant's contention, there is no reasonable viewof the evidence to support the theory that she unlawfully entered the victim's dwelling,but did not intend to commit a crime therein (see § 140.30; People v Santos, 101 AD3d427, 428 [2012], lv denied 20 NY3d 1103 [2013]; People v Clarke,233 AD2d 831, 832 [1996], lv denied 89 NY2d 1010 [1997], lv denied uponreconsideration 90 NY2d 856 [1997]; see generally People v Glover, 57NY2d 61, 63-64 [1982]). The evidence established that defendant and her accomplicesbroke down the door, entered the house armed with one or more baseball bats, andimmediately attacked the victim's son (see People v Massey, 45 AD3d 1044, 1046 [2007], lvdenied 9 NY3d 1036 [2008]). To the extent that defendant contends that she wasentitled to the lesser included charge because there is a reasonable view of the evidencethat she did not enter the victim's house, that assertion is unpreserved (see People v McCoy, 91 AD3d537, 537-538 [2012]). In any event, that contention lacks merit inasmuch as bothcriminal trespass in the second degree and burglary in the first degree require entry into adwelling (see §§ 140.15 [1]; 140.30).
As defendant correctly concedes, her challenge to the legal sufficiency of theevidence with respect to the crime of burglary in the first degree is unpreserved for ourreview inasmuch as she failed to renew her motion for a trial order of dismissal afterpresenting evidence (see Peoplev Lugo, 87 AD3d 1403, 1404 [2011], lv denied 18 NY3d 860 [2011]).In any event, that contention is without merit. Contrary to defendant's contention, thePeople established that she entered a dwelling, i.e., the victim's home, which is anecessary element of burglary in the first degree (see Penal [*2]Law § 140.30; People v Prince, 51 AD3d 1052, 1053-1054 [2008], lvdenied 10 NY3d 938 [2008]). The entry element of burglary is satisfied "when aperson intrudes within a [dwelling], no matter how slightly, with any part of his or herbody" (People v King, 61 NY2d 550, 555 [1984]; see People vCleveland, 281 AD2d 815, 816 [2001], lv denied 96 NY2d 900 [2001]).Here, several witnesses unequivocally testified that defendant and another assailantentered the foyer of the victim's home after breaking down the door, and a recording ofthe contemporaneous 911 call made by the victim's sister indicates that she told the 911operator that the assailants were "inside the house" (see generally Prince, 51AD3d at 1054; People v Rivera, 301 AD2d 787, 788 [2003], lv denied99 NY2d 631 [2003]). Indeed, the victim specifically identified the location where sheobserved defendant and the other assailant striking her son, which was several feet insidethe house. With respect to the intent element, it is well settled that, "in order to be guiltyof burglary for unlawful entry, a defendant must have had the intent to commit a crime atthe time of entry . . . [C]ontemporaneous intent is required" (People vGaines, 74 NY2d 358, 363 [1989]). A defendant's intent to commit a crime "may beinferred from the circumstances of the entry" (id. at 362 n 1; see People vMitchell, 254 AD2d 830, 831 [1998], lv denied 92 NY2d 984 [1998];Clarke, 233 AD2d at 832). Here, we conclude that the violent nature of defendant'sentry into the home, including breaking down the door, forcing her way into the house,and immediately attacking the occupants, sufficiently establishes her intent to commit acrime at the time of entry (see Massey, 45 AD3d at 1046; Clarke, 233AD2d at 832). Contrary to the further contention of defendant, we conclude that, viewingthe evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), the verdict is not against the weight of the evidence on theissue of identification (seePeople v Dark, 104 AD3d 1158, 1158 [2013]; People v Carr, 99 AD3d1173, 1174 [2012], lv denied 20 NY3d 1010 [2013]; People v Mobley, 49 AD3d1343, 1345 [2008], lv denied 11 NY3d 791 [2008]; see generally Peoplev Bleakley, 69 NY2d 490, 495 [1987]). Although a different verdict would not havebeen unreasonable in light of, inter alia, defendant's testimony that she did not participatein the attack, "[t]he jury's resolution of credibility and identification issues is entitled togreat weight" (People vKelley, 46 AD3d 1329, 1331 [2007], lv denied 10 NY3d 813 [2008][internal quotation marks omitted]), and we cannot conclude on this record that the juryfailed to give the evidence the weight it should be accorded (see Mobley, 49AD3d at 1345; Kelley, 46 AD3d at 1331). Notably, four witnesses, including thevictim, testified that defendant was one of the assailants.
Defendant failed to preserve for our review her contention that she was denied a fairtrial by prosecutorial misconduct on summation (see CPL 470.05 [2]; People v Wiley, 104 AD3d1314, 1314 [2013]), and we decline to exercise our power to review that contentionas a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).Contrary to the further contention of defendant, we conclude that the court did not abuseits discretion in denying without a hearing her posttrial motion to set aside the verdictpursuant to CPL 330.30 (3) inasmuch as "defendant failed to show that the allegedly newevidence could not have been discovered earlier in the exercise of reasonable diligence"(People v Robertson, 302 AD2d 956, 958 [2003], lv denied 100 NY2d542 [2003]; see People vArchie, 78 AD3d 1560, 1561 [2010], lv denied 16 NY3d 856 [2011]).The purportedly new evidence consisted of affidavits from defendant and two otherwitnesses who alleged that defendant's mother paid two other women to attack thevictims. Defendant, however, admitted that her mother informed her of those allegedfacts over a year prior to trial.
Finally, the sentence is not unduly harsh or severe. Present—Smith, J.P.,Peradotto, Lindley and Valentino, JJ.