| People v Brevard |
| 2017 NY Slip Op 02936 [149 AD3d 546] |
| April 18, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Joseph Brevard, Appellant. |
Richard M. Greenberg, Office of the Appellate Defender, New York (Sok Tea Jiang ofcounsel), and Debevoise & Plimpton LLP, New York (Christopher S. Ford of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Hope Korenstein of counsel), forrespondent.
Judgment, Supreme Court, New York County (Thomas Farber, J.), rendered November 27,2012, as amended January 28, 2013, convicting defendant, after a nonjury trial, of assault in thesecond degree, attempted assault in the first degree, three counts of burglary in the first degree,two counts of attempted robbery in the first degree, and two counts of criminal possession of aweapon in the second degree, and sentencing him, as a second felony offender, to an aggregateterm of 18 years, unanimously affirmed.
The court properly denied defendant's motion to suppress statements. Although defendant'sright to counsel had attached on unrelated drug charges, he absconded after being released onbail, and was lawfully questioned on the present charges when he was returned on a benchwarrant (see People v Lopez, 16NY3d 375, 385-386, 385 n 6 [2011]; People v Garcia, 40 AD3d 541 [1st Dept 2007], lv denied 9NY3d 961 [2007]; People v Clarke, 298 AD2d 259 [1st Dept 2002], lv denied 99NY2d 613 [2003]). We see no reason to abandon our line of cases stating this principle,especially since these precedents are entirely consistent with the Court of Appeals' subsequentdiscussion of the issue in Lopez (see also People v Bing, 76 NY2d 331[1990]).
We reject defendant's arguments concerning the sufficiency and weight of the evidencesupporting the unlawful entry element of burglary. Although the victim permitted defendant toenter the building where the crime occurred, the evidence established that the victim was not aresident, and was present for the purpose of selling marijuana in the lobby. Therefore, the victimwas not authorized to grant anyone a license to enter (see Penal Law§ 140.00 [5]), and was in any event not authorized to grant entry "to conduct illegalactivity" (People v Williams, 174 Misc 2d 868, 871 [Sup Ct, Queens County 1997]). Theevidence also supports a reasonable inference that defendant knew he was entering unlawfully.Furthermore, defendant's entry was unlawful for the separate reason that he entered by means of aruse (see e.g. People v Mitchell, 254 AD2d 830 [4th Dept 1998], lvdenied 92 NY2d 984 [1998] [posing as utility worker]). The evidence supports theconclusion that defendant entered the building, not merely with the secret intent to [*2]rob the victim, but by misrepresenting himself to be part of the lineof people waiting to buy marijuana.
We perceive no basis for reducing the sentence. Concur—Sweeny, J.P., Richter,Andrias, Webber and Gesmer, JJ.