| People v McKelvey |
| 2020 NY Slip Op 01011 [180 AD3d 494] |
| February 13, 2020 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Arnold McKelvey, Appellant. |
Christina Swarns, Office of The Appellate Defender, New York (Rosemary Herbertof counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Samuel Z. Goldfine of counsel),for respondent.
Judgment, Supreme Court, New York County (Marcy L. Kahn, J.), renderedDecember 18, 2014, as amended November 21, 2015, convicting defendant, after a jurytrial, of burglary in the first degree and robbery in the second and third degrees, andsentencing him, as a persistent violent felony offender to an aggregate term of 20 years tolife, unanimously affirmed.
The verdict was supported by legally sufficient evidence. The victim's testimonyabout the pain and injuries she sustained when defendant put her in a chokehold,impeded her breathing, and violently ripped necklaces off her neck established thephysical injury element (seePeople v Chiddick, 8 NY3d 445 [2007]), and the jury was entitled to credit thattestimony notwithstanding the absence of any medical treatment (see People vGuidice, 83 NY2d 630, 636 [1994]). Defendant's entry into the victim's building wasrendered unlawful, not by his unlawful intent, but by the fact that he only obtained thevictim's permission to enter by affirmatively misrepresenting that his sole purpose inentering was to help the victim, who was using a walker; thus, "there exist[ed] both ahidden intent to commit a crime as well as the additional deceit in obtaining the license toenter the premises" (People v Graves, 76 NY2d 16, 21 [1990]; see also People v Brevard, 149AD3d 546, 547 [1st Dept 2017], lv denied 30 NY3d 947 [2017]). Theelement of entry with intent to commit a crime was supported by the reasonable inferencethat when defendant followed the victim home from a bus stop and "helped" her throughthe door, he did so with the intent to rob her, rather than forming that intent after he hadalready entered. Concur—Gische, J.P., Kapnick, Webber, Moulton, JJ.