Opinion
December 1, 1986
Appeal from the Supreme Court, Queens County (Dufficy, J.).
Ordered that the judgment is affirmed.
In a burglary case, the element of intent to commit a crime within a building entered unlawfully must normally be proven by circumstantial evidence since it is rare that a perpetrator will openly declare his intent to commit a crime (see, People v Barnes, 50 N.Y.2d 375, 381; People v. Castillo, 47 N.Y.2d 270, 277). In this case, the jury could reasonably conclude from the facts proved and the inferences which could be drawn therefrom that the defendant intended to commit a crime in the subject premises. As a result, there was sufficient evidence in this case to establish the element of intent with regard to the charge of burglary in the third degree (see, People v. Barnes, supra; People v. Castillo, 47 N.Y.2d 270, supra).
The defendant's claim, that it was reversible error to allow Officer McGovern to testify as an expert that the tools found in the defendant's possession at the time of his arrest (i.e., screwdrivers, pliers, and a flashlight) were burglar's tools, is unpreserved for appellate review (CPL 470.05), and in any event, is without merit. It was not an abuse of discretion for the trial court to allow expert testimony as to whether these items were burglar's tools since what tools and instruments are used in the crime of burglary is not within the common knowledge or experience of the average layperson (see, People v. Cronin, 60 N.Y.2d 430, 432-433; Selkowitz v. County of Nassau, 45 N.Y.2d 97, 101-102). The defendant did not request a special charge to the jury on the assessment of expert testimony, nor did he object to the charge as given. Thus, his present claim that the court aggravated the error of admitting expert testimony by not giving such a special charge is unpreserved for appellate review (People v. Harris, 107 A.D.2d 761, 762). Moreover, there is no basis for reversal in the interest of justice as the charge given fully and properly instructed the jury on the law relevant to this case, including the principles applicable to the assessment of Officer McGovern's testimony (see, People v. Canty, 60 N.Y.2d 830, 831-832).
It was error for the court to allow into evidence the stereo equipment which was found inside the duffel bag that was in the defendant's possession at the time of his arrest. There was no allegation or proof that the defendant had stolen that equipment from within the subject premises, or even that the equipment belonged to anyone other than the defendant. The equipment was not connected with the alleged burglary in any respect which would make it relevant to an issue in the case (see, People v Mirenda, 23 N.Y.2d 439, 453; People v. Baker, 103 A.D.2d 749, 750; People v. Rivera, 88 A.D.2d 892). However, in view of the overwhelming evidence of the defendant's guilt, and the fact that there was no significant probability that the defendant would have been acquitted if the stereo equipment had been excluded, the error resulting from its admission was harmless (see, People v. Crimmins, 36 N.Y.2d 230, 241). Thompson, J.P., Niehoff, Rubin and Eiber, JJ., concur.