| People v Van Praag |
| 2017 NY Slip Op 05981 [153 AD3d 559] |
| August 2, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v David Van Praag, Appellant. |
Lynn W. L. Fahey, New York, NY (Dina Zloczower of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Howard B.Goodman, and Daniel Berman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Harrington,J.), rendered August 28, 2013, convicting him of burglary in the second degree, robbery in thethird degree, and assault in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was convicted of burglary in the second degree, robbery in the third degree,and assault in the third degree in connection with an incident in which he and a codefendantunlawfully entered an apartment after the codefendant had moved out of the apartment, assaultedthe codefendant's former roommate, and stole property.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of burglary in the second degree beyond a reasonable doubt. Moreover, uponour independent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt ofburglary in the second degree was not against the weight of the evidence (see People v Danielson, 9 NY3d342, 348 [2007]; People vRomero, 7 NY3d 633 [2006]). "A person is guilty of burglary in the second degree whenhe knowingly enters or remains unlawfully in a building with intent to commit a crime therein"(Penal Law § 140.25), and "[t]he building is a dwelling" (Penal Law§ 140.25 [2]; see People vAyers, 128 AD3d 845 [2015]). Here, evidence was adduced that the defendantthreatened the complainant multiple times prior to entering the apartment, forcibly pushed in theapartment door, ripped the door to the complainant's bedroom off its hinges, splintering thedoorframe, and immediately began to punch the complainant multiple times in the face, stoppingonly when he obtained the property he sought. These circumstances established the defendant'sknowledge that he was not licensed or privileged to enter the dwelling, and his contemporaneousintent to commit a crime therein (seePeople v Brown, 36 AD3d 930, 931 [2007]; cf. People v Konikov, 160 AD2d146, 149 [1990]; see generally People v Gaines, 74 NY2d 358, 362 [1989]).
The defendant's conviction of robbery in the third degree was supported by legally sufficientevidence. Contrary to the defendant's contention, the evidence established beyond a [*2]reasonable doubt that the defendant intended to steal property fromits owner (see People v Green, 5NY3d 538, 544 [2005]). Moreover, the verdict of guilt on this count was not against theweight of the evidence (see People v Danielson, 9 NY3d at 348).
The defendant's claim that the evidence of physical injury was legally insufficient to supportthe conviction of assault in the third degree is unpreserved for appellate review because thedefendant did not raise this issue at trial (see People v Bedford, 95 AD3d 1226 [2012]; People vSloan, 202 AD2d 525 [1994]). In any event, viewed in a light most favorable to theprosecution, we are satisfied that the evidence of "substantial pain" necessary to establishphysical injury within the meaning of Penal Law § 10.00 (9) was legally sufficientto support the conviction of assault in the third degree (see People v Morales, 245 AD2d467, 467-468 [1997]). Moreover, upon our independent review pursuant to CPL 470.15 (5), weare satisfied that the verdict of guilt of assault in the third degree was not against the weight ofthe evidence (see People v Danielson, 9 NY3d at 348; People v Romero, 7 NY3dat 633).
The defendant's remaining contentions are without merit. Balkin, J.P., Roman, Hinds-Radixand LaSalle, JJ., concur.