| People v Kelly |
| 2022 NY Slip Op 00695 [202 AD3d 1158] |
| February 3, 2022 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Stephen Kelly, Appellant. |
Stephen W. Herrick, Public Defender, Albany (James A. Bartosik Jr. of counsel), forrespondent.
P. David Soares, District Attorney, Albany (Jonathan P. Catania of counsel), forrespondent.
Colangelo, J. Appeal from a judgment of the Supreme Court (Breslin, J.), rendered August 6,2018 in Albany County, which revoked defendant's probation and imposed a sentence ofimprisonment.
Defendant pleaded guilty to one count of burglary in the third degree and, in July 2017,received a split sentence of six months in jail and five years of probation—subject tovarious terms and conditions, including that defendant refrain from committing any newoffenses. The underlying charge stemmed from defendant cutting a window screen, entering alocal hotel room and stealing a laptop. Defendant was released from jail shortly after sentencingand, approximately six weeks later, was arrested and charged with attempted burglary in thesecond degree after he reached through another hotel window and, during the course of doing so,awakened the state trooper who was staying there. As a result, defendant was charged withviolating two conditions of his probation—refraining from committing new offenses andfailing to maintain full-time employment. Following a hearing, defendant was found to haveviolated the terms of his probation by committing a new crime and thereafter was sentenced to aprison term of 2 to 6 years. This appeal ensued.
We affirm. "A violation of probation proceeding is summary in nature and a sentence ofprobation may be revoked if the defendant has been afforded an opportunity to be heard and thecourt determines by a preponderance of the evidence that a condition of the probation has beenviolated" (People v October, 187AD3d 1247, 1248 [2020] [internal quotation marks and citations omitted], lv denied36 NY3d 930 [2020]; accord People vThomas, 163 AD3d 1293, 1294 [2018], lv denied 32 NY3d 1068 [2018]). Here,the People sought to establish that defendant violated the terms and conditions of his probationby committing a new offense—specifically, attempted burglary in the second degree. Asrelevant here, "[a] person is guilty of burglary in the second degree when he [or she] knowinglyenters or remains unlawfully in a building with intent to commit a crime therein, and when. . . [t]he building is a dwelling" (Penal Law § 140.25 [2]), and "[a]person is guilty of an attempt to commit a crime when, with intent to commit a crime, he [or she]engages in conduct [that] tends to effect the commission of such crime" (Penal Law§ 110.00; see People vTerry, 196 AD3d 840, 841 [2021], lv denied 37 NY3d 1030 [2021]). In thisregard, it is well settled that "[i]ntent may be inferred from defendant's conduct and thesurrounding circumstances" (People vJasiewicz, 162 AD3d 1398, 1401 [2018], lv denied 32 NY3d 1005 [2018]; see People v Spencer, 152 AD3d863, 864 [2017], lv denied 30 NY3d 983 [2017]). Notably, "the intent necessary forburglary can be inferred from the circumstances of the entry itself" (People v Mackey, 49NY2d 274, 280 [1980]; accord People vOcasio, 167 AD3d 412, 412 [2018], lv denied 32 NY3d 1208 [2019]). Finally,the entry requirement of the [*2]statute is satisfied "when aperson intrudes within a building, no matter how slightly, with any part of his or her body"(People v King, 61 NY2d 550, 555 [1984]; accord People v McFarland, 106 AD3d 1129, 1130 [2013], lvdenied 22 NY3d 1140 [2014]).
The trooper testified that, shortly after midnight on the morning in question, he wasawakened by a loud noise. As he became fully awake, he heard more noises coming from thedirection of the window in the hotel room. Upon looking in that direction, he saw the "silhouetteof a body at the window," noticed movement in the curtain covering the window and saw an armpush through the open window and disturb the curtain. The trooper attributed the loud noise tothe destruction of the accompanying window screen, which he later observed to be broken, but hecould not recall whether the window was open prior to this incident, nor was he aware of whetherthe window screen was broken prior thereto.
For his part, defendant readily admitted being at the hotel on the morning in question andtestified that he had been sitting in the hotel lobby utilizing the Wi-Fi connection from arestaurant located across the street from the hotel. After defendant went outside to smoke acigarette, he became "curious" about the hotel's window coverings, which appeared to him to beeither a curtain, a shade or some sort of partition. In furtherance of his stated desire to "get abetter view" of the window covering, he walked to the room where the trooper was sleeping,"open[ed] [the] window" and "reach[ed] in briefly" to touch the curtain. According to defendant,he did not remove the window screen because no screen was present.
Contrary to defendant's assertion, his own testimony was sufficient to establish, by apreponderance of the evidence, that he violated the terms and conditions of his probation byengaging in the crime of attempted burglary in the second degree. Defendant's admission that hereached through the window that he in turn opened was sufficient to satisfy the entry element ofthe statute (see e.g. People v Clarke, 233 AD2d 831, 832 [1996], lv denied 89NY2d 1010 [1997], lv denied upon reconsideration 90 NY2d 856 [1997]), anddefendant's stated explanation for doing so—that he was curious about the fabriccomprising the window covering—is unworthy of belief. Such entry, coupled with thesurrounding circumstances—namely, defendant's middle-of-the-night decision to open awindow to a hotel room that he was not occupying and reach through thatwindow—satisfied the intent element of the statute (see id. at 832). Accordingly,we discern no basis upon which to disturb Supreme Court's finding that defendant violated hisprobation in this respect.
To the extent that defendant contends that Supreme Court erred in allowing testimonyregarding the stolen property that defendant allegedly possessed at the time of his arrest, we findany such error in this regard to be harmless—particularly given that Supreme Court's oralfindings [*3]reflect that it did not consider such proof in reachingits determination. Finally, given defendant's extensive criminal history, we discern noextraordinary circumstances or abuse of the discretion warranting a reduction of the sentenceimposed (see People v McFadden,127 AD3d 1340, 1341 [2015], lv denied 26 NY3d 932 [2015]; People v Oehler, 52 AD3d 955,957 [2008], lv denied 11 NY3d 792 [2008]). Defendant's remaining contentions, to theextent not specifically addressed, have been examined and found to be lacking in merit.
Egan Jr., J.P., Clark and Pritzker, JJ., concur. Ordered that the judgment is affirmed.