Opinion
2013-02-1
The PEOPLE of the State of New York, Respondent, v. Gerald FREEMAN, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David Panepinto of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of Counsel), for Defendant–Appellant.Frank A. Sedita, III, District Attorney, Buffalo (David Panepinto of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.
MEMORANDUM:
On appeal from a judgment convicting him following a jury trial of, inter alia, burglary in the third degree (Penal Law § 140.20), defendant contends that the evidence is legally insufficient to establish that he intended to commit a crime when he unlawfully entered the vacant house he was charged with burglarizing. Defendant's contention lacks merit ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). The People were required to prove “only defendant's general intent to commit a crime in the [building] ..., not his intent to commit a specific crime” ( People v. Lewis, 5 N.Y.3d 546, 552, 807 N.Y.S.2d 1, 840 N.E.2d 1014). Moreover, the People were not required to prove that defendant actually committed the intended crime ( see People v. Porter, 41 A.D.3d 1185, 1186, 837 N.Y.S.2d 455,lv. denied9 N.Y.3d 963, 848 N.Y.S.2d 32, 878 N.E.2d 616). The jury was entitled to infer defendant's intent to commit a crime inside the building from the evidence that he broke a window to gain entry ( see generally People v. Barnes, 50 N.Y.2d 375, 381, 429 N.Y.S.2d 178, 406 N.E.2d 1071;People v. Grant, 162 A.D.2d 1021, 1022, 559 N.Y.S.2d 56), as well as from the evidence of his simultaneous possession of burglar tools ( see People v. Wright, 92 A.D.2d 722, 461 N.Y.S.2d 130). The jury was also entitled to infer defendant's intent from his “actions and assertions when confronted by the police” ( People v. Mitchell, 254 A.D.2d 830, 831, 679 N.Y.S.2d 761,lv. denied92 N.Y.2d 984, 683 N.Y.S.2d 765, 706 N.E.2d 753), which included fighting with the police and threatening one of the arresting officers.
Finally, in view of the fact that defendant has a criminal record dating back to 1973, including three prior felony convictions, as well as the fact that he violently resisted arrest, we perceive no basis to exercise our power to reduce the sentence as a matter of discretion in the interest of justice ( seeCPL 470.15[6][b] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.