Opinion
2014-10-9
The PEOPLE of the State of New York, Respondent, v. Robin SINGER, Defendant–Appellant.
Steven Banks, The Legal Aid Society, New York (Frances A. Gallagher of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), for respondent.
Steven Banks, The Legal Aid Society, New York (Frances A. Gallagher of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), for respondent.
GONZALEZ, P.J., SAXE, DeGRASSE, RICHTER, CLARK, JJ.
Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered March 15, 2011, convicting defendant, after a jury trial, of criminal trespass in the second degree, and sentencing her to a term of one year, unanimously affirmed.
The verdict was supported by legally sufficient evidence and was not against the weight of the evidence ( see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's credibility determinations. Defendant's lack of a license to enter the apartment where her estranged niece resided, and defendant's knowledge that her entry was unlawful, were established by both the niece's testimony that she never gave defendant permission to enter and by the totality of the circumstances ( see People v. Jackson, 118 A.D.3d 635, 988 N.Y.S.2d 184 [1st Dept.2014]; People v. Midgette, 115 A.D.3d 603, 604, 982 N.Y.S.2d 128 [1st Dept.2014], lv. denied23 N.Y.3d 965, 988 N.Y.S.2d 572, 11 N.E.3d 722 [2014] ). These circumstances included defendant's estrangement from her niece ( see People v. Schneiderman, 295 A.D.2d 137, 139, 743 N.Y.S.2d 437 [1st Dept.2002], lv. dismissed98 N.Y.2d 702, 747 N.Y.S.2d 421, 776 N.E.2d 10 [2002] ), the deception defendant used to gain access by conveying the impression to building personnel that she was a resident of the apartment ( see People v. Aaron, 233 A.D.2d 231, 650 N.Y.S.2d 535 [1st Dept.1996], lv. denied89 N.Y.2d 983, 656 N.Y.S.2d 742, 678 N.E.2d 1358 [1997] ), the unusual hour and egregious circumstances of the entry ( see People v. White, 276 A.D.2d 287, 713 N.Y.S.2d 874 [1st Dept.2000], lv. denied96 N.Y.2d 740, 722 N.Y.S.2d 807, 745 N.E.2d 1030 [2001] ) and defendant's statements evincing her knowledge that her entry was unlawful and her consciousness of guilt ( see Jackson, 118 A.D.3d at 636, 988 N.Y.S.2d 184).
Since defendant never alerted the court to the specific claim she raises on appeal, defendant's challenge to the prosecutor's summation is unpreserved ( see People v. Romero, 7 N.Y.3d 911, 828 N.Y.S.2d 274, 861 N.E.2d 89 [2006] ), and we decline to review it in the interest of justice. As an alternative holding, we find no basis for reversal. By referring to the niece as the “tenant” of the apartment, the prosecutor did not act as an unsworn expert witness regarding the niece's right to occupy the apartment. Instead, the prosecutor used the term colloquially and not in a technical legal sense ( see People v. Martinez, 95 A.D.3d 462, 943 N.Y.S.2d 95 [1st Dept.2012], lv. denied19 N.Y.3d 975, 950 N.Y.S.2d 358, 973 N.E.2d 768 [2012] ). In any event, the prosecutor's conduct did not deprive defendant of a fair trial.