| People v Hymes |
| 2015 NY Slip Op 07409 [132 AD3d 1411] |
| October 9, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Anacin L. Hymes, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Bridget L. Field of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Joan S. Kohout, A.J.),rendered October 25, 2010. The judgment convicted defendant, after a nonjury trial, ofburglary in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him, following anonjury trial, of burglary in the third degree (Penal Law § 140.20). SupremeCourt properly refused to suppress defendant's statement made to a police officer outsidethe building where a burglary in progress had been reported. Although defendant wasthen in custody, the officer's pre-Miranda question was a permissible thresholdcrime scene inquiry that did not constitute custodial interrogation (see People vBurnett, 228 AD2d 788, 790 [1996]; People v Mallory, 175 AD2d 623,623-624 [1991], lv denied 78 NY2d 1013 [1991]). When the officer askeddefendant what he was doing, "it was quite possible that defendant was not the burglar,[and thus] the question [was] designed to clarify the nature of the situation confronted,rather than to coerce statements" (People v Nesby, 161 AD2d 246, 247 [1990],lv denied 76 NY2d 793 [1990]).
The evidence, viewed in the light most favorable to the People (see People vContes, 60 NY2d 620, 621 [1983]), is legally sufficient to establish that defendantpossessed the requisite intent to commit a crime when he unlawfully entered the building(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). His "criminal intentcan be inferred from his unexplained, unauthorized presence on the premises, from hisactions while on the premises, and from his actions and assertions when confronted bythe police" (People v Gates, 170 AD2d 971, 971-972 [1991], lv denied 78NY2d 922 [1991]; see People vOstrander, 46 AD3d 1217, 1218 [2007]). Viewing the evidence in light of theelements of the crime in this nonjury trial (see People v Danielson, 9 NY3d 342, 349 [2007]), wereject defendant's contention that the verdict is against the weight of the evidence (seegenerally Bleakley, 69 NY2d at 495).
Contrary to defendant's further contention, we conclude that County Court properlycurtailed the cross-examination of a prosecution witness with respect to allegedomissions of fact in her statement to a police officer on the night of the burglary. Thewitness testified that she did not omit any facts from her statement, but the officer did notwrite everything down. "[T]hus[,] there was no basis for impeachment of her trialtestimony based on that statement" (People v Hamm, 96 AD3d 1482, 1483 [2012], affd21 NY3d 708 [2013]; see People v Bornholdt, 33 NY2d 75, 88 [1973]; People v Ogborn, 57 AD3d1430, 1431 [2008], lv denied 12 NY3d 786 [2009]).
Finally, the court properly denied as untimely defendant's request that two personswho identified him on the night of the burglary be treated as missing witnesses by thecourt (see People v Tomlin,130 AD3d 1455, 1456 [2015]; People v Williams, 94 AD3d 1555, 1556 [2012]).Present—Smith, J.P., Centra, Whalen and DeJoseph, JJ.