Opinion
No. 513 KA 21-01283
06-30-2023
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. JASON A. INGLESTON, DEFENDANT-APPELLANT.
RYAN J. MULDOON, AUBURN, FOR DEFENDANT-APPELLANT. BRITTANY GROME ANTONACCI, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.
RYAN J. MULDOON, AUBURN, FOR DEFENDANT-APPELLANT.
BRITTANY GROME ANTONACCI, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, BANNISTER, MONTOUR, AND GREENWOOD, JJ.
Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, A.J.), rendered August 3, 2021. The judgment convicted defendant upon a jury verdict of attempted robbery in the third degree and burglary in the second degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of attempted robbery in the third degree (Penal Law §§ 110.00, 160.05) and burglary in the second degree (§ 140.25 [2]). We reject defendant's contention that the evidence is legally insufficient to support his conviction of burglary in the second degree. Even assuming, arguendo, that defendant's contention is fully preserved for our review, "[v]iewing the evidence in the light most favorable to the People, and giving them the benefit of every reasonable inference" (People v Bay, 67 N.Y.2d 787, 788 [1986]), we conclude that there is a "valid line of reasoning and permissible inferences which could lead a rational person to the conclusion" that defendant was the perpetrator of the burglary (People v Bleakley, 69 N.Y.2d 490, 495 [1987]; see People v Colon, 211 A.D.3d 1613, 1614 [4th Dept 2022], lv denied 39 N.Y.3d 1141 [2023]). Further, "[t]he element of 'intent to commit a crime [in the dwelling]' may be inferred from defendant's conduct and the surrounding circumstances... including the circumstances of the entry" (People v Thompson, 206 A.D.3d 1708, 1709 [4th Dept 2022], lv denied 38 N.Y.3d 1153 [2022]; see § 140.25 [2]). Here, the evidence established, among other things, that defendant obtained entry to the victims' house by breaking a window. "The fact that defendant used force in obtaining entry to the [house] by breaking the glass window[ ]... 'amply supports the inference that he had criminal intent'" (People v Bergman, 70 A.D.3d 1494, 1494 [4th Dept 2010], lv denied 14 N.Y.3d 885 [2010]; see People v Gelling, 163 A.D.3d 1489, 1492 [4th Dept 2018], amended on rearg 164 A.D.3d 1673 [4th Dept 2018], lv denied 32 N.Y.3d 1003 [2018]). Contrary to defendant's contention, the jury's rejection of the affirmative defense of duress is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495; People v Box, 181 A.D.3d 1238, 1240 [4th Dept 2020], lv denied 35 N.Y.3d 1025 [2020], cert denied - U.S. -, 141 S.Ct. 1099 [2021]; People v Hammond, 84 A.D.3d 1726, 1726 [4th Dept 2011], lv denied 17 N.Y.3d 816 [2011]).
We reject defendant's further contention that County Court erred in denying his request to charge criminal trespass in the second degree as a lesser included offense of the count of burglary in the second degree (see generally People v Cajigas, 19 N.Y.3d 697, 701-702 [2012]). Here, based on all the evidence at trial, the only reasonable view of the evidence is that defendant knowingly entered or remained unlawfully in a dwelling with the intent to commit a crime therein (see Penal Law § 140.25 [2]; People v Reibel, 181 A.D.3d 1268, 1269 [4th Dept 2020], lv denied 35 N.Y.3d 1029 [2020], reconsideration denied 35 N.Y.3d 1096 [2020]; People v Martinez, 9 A.D.3d 679, 681 [3d Dept 2004], lv denied 3 N.Y.3d 709 [2004]). We therefore further conclude that "under no reasonable view of the evidence could the jury have found that defendant committed the lesser offense but not the greater" (People v Blim, 63 N.Y.2d 718, 720 [1984]; see Reibel, 181 A.D.3d at 1269).
Defendant's further contention that he was denied effective assistance of counsel must be raised by way of a motion pursuant to CPL article 440 inasmuch as this is not the "rare case [in which]... it [is] possible, based on the trial record alone, to deem counsel ineffective for failure to [adequately] pursue a suppression motion" (People v Carver, 27 N.Y.3d 418, 420 [2016]; see People v Roots, 210 A.D.3d 1532, 1534 [4th Dept 2022]; see generally People v Love, 57 N.Y.2d 998, 1000 [1982]). Contrary to defendant's contention, his sentence is not unduly harsh or severe. We have reviewed defendant's remaining contentions and conclude that none warrants reversal or modification of the judgment.