| People v Austin |
| 2014 NY Slip Op 01640 [115 AD3d 1063] |
| March 13, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JamesAustin, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the Supreme Court (Breslin, J.), renderedMay 29, 2012 in Albany County, upon a verdict convicting defendant of the crimes ofburglary in the second degree and attempted petit larceny.
Following a jury trial, defendant was convicted of burglary in the second degree andattempted petit larceny. Sentenced as a second violent felony offender to 13 years inprison followed by five years of postrelease supervision, he now appeals.
We reject defendant's contention that his statutory speedy trial rights were violated.The felony complaints commencing this action were filed on April 3, 2011 and, thus, thePeople had 183 days to declare their readiness for trial (see CPL 30.30 [1] [a];People v Cortes, 80 NY2d 201, 208 [1992]). Between the filing of the felonycomplaint and the People's August 29, 2011 declaration of readiness 147 days elapsed,all of which was deemed chargeable to the People. As to postreadiness delay, the Peoplewere charged 28 days for their failure to timely provide the grand jury minutes to thecourt in response to defendant's motion to inspect, bringing the total days chargeable tothe People to 175. Defendant argues that an additional 16 days of postreadiness delayshould have been charged to the People due to their delay in serving him with a copy oftheir opposition to his omnibus motion, yet he has failed to show that this inaction led toany delay in the proceedings or impeded the trial's commencement (see People vEngland, 84 NY2d 1, 4 [1994]; People v McCummings, 203 AD2d 656, 657[1994]; compare People v [*2]McKenna, 76NY2d 59, 64 [1990]; People vJohnson, 42 AD3d 753, 754 [2007], lv denied 9 NY3d 923 [2007]).Defendant's challenge to the excludability of an additional period of delay is unpreservedfor our review (see People v Goode, 87 NY2d 1045, 1047 [1996]; People vLuperon, 85 NY2d 71, 77-78 [1995]; People v Brown, 82 AD3d 1698, 1699 [2011], lvdenied 17 NY3d 792 [2011]; People v Pratt, 39 AD3d 315, 316 [2007], lvdenied 9 NY3d 849 [2007]).
Defendant's challenge to the legal sufficiency and the weight of the evidence issimilarly unavailing. The trial evidence established that, upon responding to a dispatchcall for a burglary in progress at a residence in the City of Albany, police officersobserved that a window had been shattered and heard movement within the home.Moments later, defendant came out of the front door and, although initially complyingwith an officer's commands, he then fled. When he was apprehended, he was searchedand a large quantity of coins was discovered on his person. Testimony revealed that theinterior of the residence had been ransacked and a substantial number of coins wasmissing. Contrary to defendant's claims, his intent to commit a crime within the homewas readily inferable from the circumstances, including his unauthorized presence thereinand his flight when confronted by police (see People v Hunter, 32 AD3d 611, 612 [2006]; People v Armstrong, 11 AD3d721, 723 [2004], lv denied 4 NY3d 760 [2005]; People v Ferguson,285 AD2d 838, 839 [2001], lv denied 97 NY2d 641 [2001]). Viewed in the lightmost favorable to the People (see People v Cabey, 85 NY2d 417, 420 [1995];People v Contes, 60 NY2d 620, 621 [1983]), we find the evidence to be legallysufficient to support defendant's convictions (see People v August, 33 AD3d 1046, 1049 [2006], lvdenied 8 NY3d 878 [2007]; People v Armstrong, 11 AD3d at 723;People v Love, 307 AD2d 528, 529 [2003], lv denied 100 NY2d 643[2003]). Further, evaluating the evidence in a neutral light, we are satisfied that theverdict was not against the weight of the evidence (see People v Bleakley, 69NY2d 490, 495 [1987]).
Addressing defendant's evidentiary challenges, Supreme Court properly permittedthe People to introduce the large quantity of coins that had been found on defendant atthe time of his apprehension, as this evidence was relevant to the issue of defendant'sintent and its probative value outweighed any potential for prejudice (see People v Alfaro, 19 NY3d1075, 1076 [2012]; Peoplev Edwards, 43 AD3d 1175, 1175 [2007], lv denied 10 NY3d 810[2008]; People v Medina,37 AD3d 240, 242 [2007], lv denied 9 NY3d 847 [2007]; see generallyPeople v Scarola, 71 NY2d 769, 777 [1988]). Defendant's assertion that hisconstitutional right to confrontation was violated by the admission of an out-of-courtstatement made by the victims' neighbor is unpreserved (see People v Kello, 96NY2d 740, 744 [2001]; Peoplev Snyder, 91 AD3d 1206, 1213 [2012], lv denied 19 NY3d 968 [2012],cert denied 568 US —, 133 S Ct 791 [2012]; People v Wright, 81 AD3d1161, 1164-1165 [2011], lv denied 17 NY3d 803 [2011]). To the extent thatdefendant objected to the admission of such testimony on the ground of impermissiblehearsay, any error was harmless (see People v Kello, 96 NY2d at 744; seegenerally People v Crimmins, 36 NY2d 230, 241-242 [1975]).
Finally, we reject defendant's contention that he was illegally sentenced as a secondviolent felony offender. Although the second felony offender statement did not set forththe specific period of time that he had been incarcerated for two prior convictions(see CPL 400.15 [2]), the statement, coupled with the responses to SupremeCourt's inquiries by both defense counsel and defendant, "establish that defendant hadbeen convicted of a [violent] felony offense within the relevant statutory period as tolledby an intervening period of incarceration" (People v Ellis, 60 AD3d 1197, 1198 [2009]; seePenal Law § 70.04 [1] [b] [iv], [v]; People v McDowell, 56 AD3d 955, 956 [2008]; compare People v Hilts, 25AD3d 1019 [2006]).[*3]
Stein, McCarthy and Garry, JJ., concur. Orderedthat the judgment is affirmed.