Opinion
January 29, 1988
Appeal from the Erie County Court, La Mendola, J.
Present — Doerr, J.P., Green, Pine, Balio and Davis, JJ.
Judgment unanimously affirmed. Memorandum: We find the evidence legally sufficient to sustain defendant's conviction for burglary in the second degree. Although defendant and the occupant of the burglarized cottage were friends and he had stayed at the cottage overnight on two occasions, this relationship is of no moment under the facts of this case. Defendant had not seen the occupant for some two weeks prior to the breakin, and their relationship did not provide a reasonable basis for any belief that he was licensed or privileged to enter when the occupant was not there (cf., People v Insogna, 86 A.D.2d 979). Evidence that entry was forced and that a jewelry box was broken during the entry is sufficient proof that defendant intended to commit a crime in the building (People v Gilligan, 42 N.Y.2d 969; People v Anderson, 103 A.D.2d 1011). Reviewing the facts, we find that the verdict was not contrary to the weight of the evidence (see, People v Bleakley, 69 N.Y.2d 490, 495).
The trial court did not abuse it discretion by denying defendant's severance motion made during the trial. The motion was untimely (CPL 200.40; 255.20; People v Bornholdt, 33 N.Y.2d 75, 87-88, cert denied sub nom. Victory v New York, 416 U.S. 905), and the defendant failed to demonstrate that he would be unduly prejudiced by a joint trial (see, CPL 200.40; People v Grant, 96 A.D.2d 867).
Defendant's claim that his sentence was unduly harsh and excessive lacks merit. He was sentenced as a second felony offender to the minimum term of imprisonment mandated by statute (see, Penal Law § 70.06, 140.25 Penal).