Opinion
06-10-2016
The PEOPLE of the State of New York, Respondent, v. Jeremy C. MAIER, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of Counsel), for Defendant–Appellant. Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Timothy J. Garvin of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of Counsel), for Defendant–Appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Timothy J. Garvin of Counsel), for Respondent.
PRESENT: CENTRA, J.P., CARNI, DeJOSEPH, CURRAN, AND SCUDDER, JJ.
Opinion
MEMORANDUM: Defendant appeals from a judgment convicting him upon a jury verdict of assault in the third degree (Penal Law § 120.00[1] ), burglary in the first degree (§ 140.30[2] ), and criminal trespass in the second degree (§ 140.15[1] ). Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction with respect to burglary in the first degree and assault in the third degree inasmuch as defendant failed to renew his motion for a trial order of dismissal after presenting evidence (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396 ). In any event, we conclude that 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 ).
In particular, defendant contends that the evidence with respect to the burglary conviction is legally insufficient because the People did not establish that he entered the victim's dwelling with intent to commit a crime therein. “ ‘In order to secure a conviction for burglary, the People need only allege and prove a knowing and unlawful entry coupled with an intent to commit a crime therein. There is no requirement that the People allege or establish what particular crime was intended’ ” (People v. Lewis, 5 N.Y.3d 546, 552, 807 N.Y.S.2d 1, 840 N.E.2d 1014 ; see People v. James, 114 A.D.3d 1202, 1204, 980 N.Y.S.2d 645, lv. denied 22 N.Y.3d 1199, 986 N.Y.S.2d 420, 9 N.E.3d 915 ). Additionally, “[a] defendant's intent to commit a crime ‘may be inferred from the circumstances of the entry’ ” (People v. Sterina, 108 A.D.3d 1088, 1090, 968 N.Y.S.2d 296 ), as well as “ ‘from defendant's actions and assertions when confronted’ ” ( People v. Jamieson, 88 A.D.3d 1298, 1299, 930 N.Y.S.2d 748 ). Here, contrary to defendant's contention, the People established that defendant intended to commit at least one of three crimes when he entered the victim's residence—i.e., assault in the first degree (Penal Law § 120.10 ), assault in the third degree (§ 120.00 ), or menacing in the third degree (§ 120.15 )—as demonstrated by the facts that defendant was armed with a knife when he entered the residence through a window, threatened to eject the victim from the residence, and immediately lunged at the victim from the windowsill, initiating a fight in which defendant punched the victim and tore out a handful of the victim's hair.
Viewing the evidence in light of the elements of burglary in the first degree as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Moreover, inasmuch as “ ‘the evidence is legally sufficient to support defendant's conviction ..., it cannot be said that defense counsel's failure to renew the motion for a trial order of dismissal constitutes ineffective assistance of counsel’ ” (People v. Kaminski, 109 A.D.3d 1186, 1186–1187, 971 N.Y.S.2d 721, lv. denied 22 N.Y.3d 1088, 981 N.Y.S.2d 674, 4 N.E.3d 976 ; see generally People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 ). Defendant's sentence is not unduly harsh or severe. We have reviewed defendant's remaining contentions and conclude that they lack merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.