Opinion
1109 KA 19-00447
04-30-2021
The PEOPLE of the State of New York, Respondent, v. Isreal HERNANDEZ, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant, who was indicted on one count each of burglary in the first degree ( Penal Law § 140.30 [4] ) and menacing in the second degree (§ 120.14 [1]), appeals from a judgment convicting him upon a nonjury verdict of the lesser included offenses of burglary in the second degree (§ 140.25 [2]) and menacing in the third degree (§ 120.15). Defendant contends that Supreme Court failed to comply with CPL 320.20 (5) because the court failed to inform defendant of its intention to consider unindicted, lesser included offenses prior to rendering its verdict. Initially, we agree with defendant that preservation of that contention is not required in this case because defendant learned of the court's consideration of the lesser included offenses only when the court rendered its verdict and, once the verdict was rendered, the court was without a remedy to correct it (see People v. Carter , 63 N.Y.2d 530, 533, 483 N.Y.S.2d 654, 473 N.E.2d 6 [1984] ). Thus, defendant was deprived "of a practical ability to timely and meaningfully object" to any violation of CPL 320.20 (5) ( People v. Harris , 31 N.Y.3d 1183, 1185, 82 N.Y.S.3d 321, 107 N.E.3d 541 [2018] ). Although we also agree with defendant that the court failed to comply with CPL 320.20 (5), we conclude that such error was harmless (see People v. Kurkowski , 83 A.D.3d 1595, 1596, 921 N.Y.S.2d 458 [4th Dept. 2011], lv denied 16 N.Y.3d 896, 926 N.Y.S.2d 32, 949 N.E.2d 980 [2011] ).
Viewing the evidence in the light most favorable to the People (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we reject defendant's further contention that the evidence is legally insufficient to support the burglary conviction. The victim's testimony that defendant forcibly pushed his way into her apartment without her permission is legally sufficient to establish that he unlawfully entered the apartment (see People v. Cotton , 184 A.D.3d 1145, 1147, 126 N.Y.S.3d 287 [4th Dept. 2020], lv denied 35 N.Y.3d 1112, 133 N.Y.S.3d 507, 158 N.E.3d 524 [2020] ; People v. Shay , 85 A.D.3d 1708, 1709, 925 N.Y.S.2d 789 [4th Dept. 2011], lv denied 17 N.Y.3d 822, 929 N.Y.S.2d 810, 954 N.E.2d 101 [2011] ). Defendant's intent to commit a crime inside the apartment may be inferred from the "circumstances of the entry" ( People v. Standsblack , 162 A.D.3d 1523, 1525, 79 N.Y.S.3d 420 [4th Dept. 2018], lv denied 32 N.Y.3d 1008, 86 N.Y.S.3d 766, 111 N.E.3d 1122 [2018] ).