| People v Maier |
| 2016 NY Slip Op 04507 [140 AD3d 1603] |
| June 10, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJeremy C. Maier, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of counsel), fordefendant-appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Timothy J. Garvin ofcounsel), for respondent.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), renderedMay 13, 2013. The judgment convicted defendant, upon a jury verdict, of assault in thethird degree, burglary in the first degree and criminal trespass in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of assault in the third degree (Penal Law § 120.00 [1]), burglary inthe first degree (§ 140.30 [2]), and criminal trespass in the second degree(§ 140.15 [1]). Defendant failed to preserve for our review his contentionthat the evidence is legally insufficient to support the conviction with respect to burglaryin the first degree and assault in the third degree inasmuch as defendant failed to renewhis motion for a trial order of dismissal after presenting evidence (see People vHines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]). In anyevent, we conclude that defendant's contention lacks merit (see generally People vBleakley, 69 NY2d 490, 495 [1987]).
In particular, defendant contends that the evidence with respect to the burglaryconviction is legally insufficient because the People did not establish that he entered thevictim's dwelling with intent to commit a crime therein. " 'In order to secure aconviction for burglary, the People need only allege and prove a knowing and unlawfulentry coupled with an intent to commit a crime therein. There is no requirement that thePeople allege or establish what particular crime was intended' " (People v Lewis, 5 NY3d546, 552 [2005]; see Peoplev James, 114 AD3d 1202, 1204 [2014], lv denied 22 NY3d 1199[2014]). Additionally, "[a] defendant's intent to commit a crime 'may be inferred from thecircumstances of the entry' " (People v Sterina, 108 AD3d 1088, 1090 [2013]), as well as" 'from defendant's actions and assertions when confronted' " (People v Jamieson, 88 AD3d1298, 1299 [2011]). Here, contrary to defendant's contention, the People establishedthat defendant intended to commit at least one of three crimes when he entered thevictim's residence—i.e., assault in the first degree (Penal Law§ 120.10), assault in the third degree (§ 120.00), or menacingin the third degree (§ 120.15)—as demonstrated by the facts thatdefendant was armed with a knife when he entered the residence through a window,threatened to eject the victim from the residence, and immediately lunged at the victimfrom the windowsill, initiating a fight in which defendant punched the victim and toreout a handful of the victim's hair.
Viewing the evidence in light of the elements of burglary in the first degree ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not againstthe weight of the evidence (see generally Bleakley, 69 NY2d at 495). Moreover,inasmuch as " 'the evidence is legally sufficient to support defendant's conviction. . . , it cannot be said that defense counsel's failure to renew the motion fora trial order of dismissal constitutes ineffective assistance of counsel' " (People v Kaminski, 109 AD3d1186, 1186-1187 [2013], lv denied 22 NY3d 1088 [2014]; see generally People v Caban,5 NY3d 143, 152 [2005]). Defendant's sentence is not unduly [*2]harsh or severe. We have reviewed defendant's remainingcontentions and conclude that they lack merit. Present—Centra, J.P., Carni,DeJoseph, Curran and Scudder, JJ.