| People v Little |
| 2016 NY Slip Op 03610 [139 AD3d 1356] |
| May 6, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vCody Little, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller,A.J.), rendered September 11, 2013. The judgment convicted defendant, upon a juryverdict, of burglary in the second degree, reckless endangerment in the second degreeand resisting arrest.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by directing that the definite sentence imposed on count two of the indictmentshall run concurrently with the determinate sentence imposed on count one of theindictment and as modified the judgment is affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial ofburglary in the second degree (Penal Law § 140.25 [2]), recklessendangerment in the second degree (§ 120.20), and resisting arrest(§ 205.30), defendant contends with respect to his burglary conviction thatthe evidence is legally insufficient to establish that he knowingly entered the victim'sdwelling unlawfully. We reject that contention. Defendant had been evicted from thevictim's residence months before the date of the alleged burglary, and the victim testifiedthat defendant did not have permission to enter his residence on that day. Although thevictim testified that defendant was welcome to come to the residence even after beingevicted, it does not follow from that testimony that defendant had permission to enter thedwelling without the owner's knowledge or invitation. Moreover, defendant's actions inprying open a kitchen window to enter the residence and subsequently crawling throughthe residence to avoid motion sensors connected to the alarm system establish that he wasnot licensed or privileged to enter the residence when the victim was not there (see People v Morrice, 78 AD3d1534, 1535 [2010], lv denied 16 NY3d 834 [2011]; see generally Peoplev Graves, 76 NY2d 16, 20 [1990]). Viewing the evidence in light of the elements ofthe crime of burglary as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we alsoconclude that the verdict with respect to that crime is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).Resolution of credibility issues is for the jury, and the jury was entitled to disregard theminor inconsistencies in the victim's testimony (see People v Hargett, 11 AD3d 812, 814 [2004], lvdenied 4 NY3d 744 [2004]).
We reject defendant's further contention that the video of defendant captured by thevictim's surveillance camera was improperly admitted in evidence at trial. The testimonyof the victim and the police detective who viewed the video and was present while acopy was made by a technician hired by the victim established a proper foundation foradmission of the video (seePeople v Costello, 128 AD3d 848, 848 [2015], lv denied 26 NY3d 927[2015], reconsideration denied 26 NY3d 1007 [2015]). Supreme Court alsoproperly denied defendant's untimely request for a missing witness charge with respect tothe technician because the technician's testimony would have been merely cumulative (see People v Muscarella, 132AD3d 1288, 1289-1290 [2015], lv denied 26 NY3d 1147 [2016]).
Defendant further contends that he was denied effective assistance of counselbecause the victim was paying defendant's legal fees, and defense counsel thus had aconflict of interest. [*2]After being alerted by the court tothat potential conflict of interest and being given an opportunity to engage separatecounsel, however, defendant consented to continued representation by counsel, therebywaiving any claim of possible prejudice resulting from the potential conflict (seegenerally People v Gomberg, 38 NY2d 307, 315-316 [1975]). In any event, in orderto prevail on a claim of ineffective assistance, defendant was required to show "that theconduct of his defense was in fact affected by the operation of the conflict of interest, orthat the conflict operated on the representation" (People v Weeks, 15 AD3d 845, 847 [2005], lv denied4 NY3d 892 [2005] [internal quotation marks omitted]), and he failed to make thatshowing here. We reject defendant's further claims of ineffective assistance, and weconclude that the record as a whole establishes that defense counsel provided meaningfulrepresentation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).
We reject defendant's contention that his sentence is unduly harsh and severe.However, inasmuch as we cannot allow an illegal sentence to stand (see e.g. People v Abuhamra,107 AD3d 1630, 1631 [2013], lv denied 22 NY3d 1038 [2013]), we modifythe judgment by directing that the definite sentence imposed on the recklessendangerment misdemeanor count shall run concurrently with the determinate sentenceimposed on the felony burglary count (see Penal Law § 70.35;People v Leabo, 84 NY2d 952, 953 [1994]; People v Shay, 130 AD3d 1499, 1500 [2015]).
We have reviewed defendant's remaining contentions and conclude that nonewarrants reversal or further modification of the judgment. Present—Peradotto,J.P., Lindley, NeMoyer and Scudder, JJ.