| People v Henry |
| 2019 NY Slip Op 01459 [169 AD3d 1273] |
| February 28, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v ShawnO. Henry, Appellant. |
Rural Law Center of New York, Castleton (Keith F. Schockmel of counsel), for appellant.
Chad W. Brown, District Attorney, Johnstown (Amanda M. Nellis of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Fulton County (Hoye, J.), renderedJune 5, 2015, upon a verdict convicting defendant of the crimes of burglary in the third degree, petitlarceny and criminal mischief in the fourth degree.
Defendant was charged in a multicount indictment stemming from an incident where a televisionwas stolen from a night lounge. Following a jury trial, defendant was convicted of burglary in the thirddegree, petit larceny and criminal mischief in the fourth degree. County Court thereafter sentenceddefendant, as second felony offender, to concurrent prison terms, the greatest of which was3
Defendant contends that the verdict was not supported by legally sufficient evidence and wasagainst the weight of the evidence.[FN*] In this regard, defendant challenges the proof withrespect to the issue of whether he knowingly entered or remained unlawfully at the subject premises(see Penal Law § 140.20). That said, a person enters or remains unlawfully in abuilding when he or she is not licensed or privileged to do so (see Penal Law§ 140.00 [5]). "In general, a person is licensed or privileged to enter private premiseswhen he [or she] has obtained the consent of the owner or another whose relationship to the premisesgives him [or her] authority to issue such consent" (People v Graves, 76 NY2d 16, 20 [1990][internal quotation marks and citations omitted]). Whether such person was licensed or privileged toenter a building may be proved by circumstantial evidence (see People v Bethune, 65 AD3d 749, 751 [2009]).
At trial, the lounge manager testified that she arrived at the lounge on one night in August 2014 andobserved that the double doors leading to the deck were open and that there was some wood lying onthe ground. These doors were normally locked and secured with a deadbolt. The lounge managerstated that, when she looked inside, she discovered that a mounted television was missing from a wall.A detective with the City of Gloversville Police Department investigated the matter and saw several prymarks by the double doors and under the bracket where the missing television was mounted. Thedetective testified that, based upon his experience, such marks were caused by a small crow bar orlarge screwdriver. A surveillance video was played for the jury showing an individual in the lounge witha pry bar removing the television and walking out with it. Several witnesses at trial identified thisindividual as defendant.
Although a contrary result would not have been unreasonable, viewing the evidence in a neutrallight, we are satisfied that the verdict was not against the weight of the evidence (see People v Brisson, 68 AD3d 1544,1546 [2009], lv denied 14 NY3d 798 [2010]; People v Bethune, 65 AD3d at 752; People v Terry, 2 AD3d 977, 978[2003], lv denied 2 NY3d 746 [2004]). In view of the record evidence, including thesurveillance video, wherein defendant was identified as the perpetrator, and the pry marks discoveredin the lounge, the jury could reasonably infer that he was not licensed or privileged to enter or remain inthe lounge (see People v Little, 139AD3d 1356, 1356 [2016], lv denied 28 NY3d 933 [2016]). Furthermore, to the extentthat defendant challenges the veracity of the lounge owner, her credibility was explored at trial and weperceive nothing in the record that renders her testimony incredible as a matter of law (see People v Jones, 101 AD3d 1241,1242 [2012], lv denied 21 NY3d 944 [2013]; People v Warner, 69 AD3d 1052, 1054 [2010], lv denied 14NY3d 894 [2010]).
Defendant argues that he was deprived of a fair trial because County Court precluded him fromtestifying that the lounge manager told him to break into the lounge. We disagree. Contrary todefendant's assertion, such conversation was offered to prove the truth of the matter asserted and,therefore, was hearsay (see People vGuy, 93 AD3d 877, 879 [2012], lv denied 19 NY3d 961 [2012]). We further notethat the lounge manager testified at trial and could have been asked about any statements that sheallegedly made to defendant.
Finally, we reject defendant's claim that his sentence is harsh and excessive. County Courtconsidered defendant's substance abuse history and his prior criminal history when imposing thesentence. In the absence of extraordinary circumstances or an abuse of discretion, we see no basis tomodify the sentence in the interest of justice (see People v Rumola, 164 AD3d 1550, 1551 [2018]; People v Best, 158 AD3d 989, 990[2018]; People v Tetreault, 131 AD3d1327, 1328 [2015]). Defendant's remaining contentions, including his claim that he received theineffective assistance of counsel, have been considered and are without merit.
Egan Jr., J.P., Lynch, Rumsey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant's legal sufficiencyargument is unpreserved for our review given that he failed to renew his trial motion to dismiss at theclose of all proof (see People v King, 162AD3d 1228, 1229 [2018]).