Opinion
March 29, 2000.
Appeal from Judgment of Niagara County Court, Fricano, J. — Burglary, 1st Degree.
PRESENT: PIGOTT, JR., P. J., PINE, WISNER AND SCUDDER, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the first degree (Penal Law § 140.30). There is no merit to the contention of defendant that, because he allegedly entered the dwelling unlawfully with intent to commit an assault therein, the assault committed by him inside the dwelling cannot be used to aggravate the crime from second degree burglary to first degree burglary. Under the statute, the aggravating element is established upon proof of defendant's causation of injury to a non-participant, regardless of defendant's state of mind at the time of entry ( see, Penal Law § 140.30). Defendant's reliance on People v. Brown ( 112 A.D.2d 13, 14, affd 67 N.Y.2d 555, 560-561, cert denied 479 U.S. 1093) is misplaced; that case prohibits the use or display of a firearm as the predicate for criminal display of a firearm in the first degree.
Contrary to defendant's contention, the verdict is not against the weight of the evidence on the issue whether defendant had the essential criminal intent at the time of the break-in ( see, People v. Bleakley, 69 N.Y.2d 490, 495). A finder of fact could infer from the circumstances of the entry and from defendant's assaultive and larcenous acts, which occurred within minutes of the break-in, that defendant possessed the requisite criminal intent at the time of the break-in ( see, People v. Barnes, 50 N.Y.2d 375, 381; People v. Mackey, 49 N.Y.2d 274, 280).
We have considered defendant's remaining contention and conclude that it is without merit.