| People v Ocasio |
| 2018 NY Slip Op 08245 [167 AD3d 412] |
| December 4, 2018 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Angel Ocasio, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (John Vang of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Michael J. Yetter of counsel), forrespondent.
Judgment, Supreme Court, New York County (Roger S. Hayes, J.), rendered November 13,2014, convicting defendant, after a jury trial, of attempted burglary in the third degree andpossession of burglar's tools, and sentencing him, as a second felony offender, to an aggregateterm of two to four years, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of theevidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). Moreover, there was no reasonable view of the evidence,viewed in a light most favorable to defendant, that he unlawfully attempted to enter a storewithout larcenous intent. Accordingly, the court properly declined, on that ground, to submit tothe jury the lesser included offenses of criminal trespass in the second and third degrees and theirattempts.
"[T]he intent necessary for burglary can be inferred from the circumstances of the entryitself" (People v Mackey, 49 NY2d 274, 280 [1980]). Shortly after midnight, defendantattempted to pick the lock on the door of a store selling discounted merchandise, and tried to fleewhen the police arrived. When arrested, he was found to be in possession of a screwdriver,channel lock pliers, and two flashlights. He was also wearing gloves and a ski mask with only hiseyes showing, in an obvious attempt to hide his identity.
Larcenous intent is the only plausible explanation for all of these preparations to break into astore. On appeal, defendant posits various theories of what he might have intended to do in thestore, such as to "seek refuge," or even to "do nothing." None of defendant's theories has anysupport in the record or qualifies as a reasonable view of the evidence.
We note also that third-degree trespass does not qualify as a lesser included offense ofburglary (see People v Santiago, 143AD3d 545, 546 [1st Dept 2016], lv denied 28 NY3d 1127 [2016]), and the samewould apply to the respective attempts. Concur—Acosta, P.J., Renwick, Mazzarelli,Gesmer, Singh, JJ.