Opinion
337 KA 18–01793
04-24-2020
The PEOPLE of the State of New York, Respondent, v. Hugh R. JACKSON, Defendant–appellant.
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF COUNSEL), FOR DEFENDANT–APPELLANT. CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (LAURA T. JORDAN OF COUNSEL), FOR RESPONDENT.
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF COUNSEL), FOR DEFENDANT–APPELLANT.
CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (LAURA T. JORDAN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of, inter alia, attempted burglary in the second degree ( Penal Law §§ 110.00, 140.25[2] ), defendant contends that his conviction of that crime is not supported by legally sufficient evidence with respect to the issue of his intent to commit a crime in the dwelling at issue. We reject that contention. Viewing the evidence in the light most favorable to the People, as we must (see People v. Delamota, 18 N.Y.3d 107, 113, 936 N.Y.S.2d 614, 960 N.E.2d 383 [2011] ; People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we conclude that there is a valid line of reasoning and permissible inferences from which a rational jury could have found that element of the crime proved beyond a reasonable doubt (see generally People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). The jury may infer such intent from the defendant's conduct and the surrounding circumstances (see People v. Pendarvis, 143 A.D.3d 1275, 1275, 39 N.Y.S.3d 348 [4th Dept. 2016], lv denied 28 N.Y.3d 1149, 52 N.Y.S.3d 300, 74 N.E.3d 685 [2017] ; see generally People v. Mackey, 49 N.Y.2d 274, 280–281, 425 N.Y.S.2d 288, 401 N.E.2d 398 [1980] ; People v. Jacobs, 37 A.D.3d 868, 870, 828 N.Y.S.2d 704 [3d Dept. 2007], lv denied 9 N.Y.3d 923, 844 N.Y.S.2d 178, 875 N.E.2d 897 [2007] ), including the "defendant's actions ... when confronted" ( People v. Maier, 140 A.D.3d 1603, 1603–1604, 34 N.Y.S.3d 544 [4th Dept. 2016], lv denied 28 N.Y.3d 933, 40 N.Y.S.3d 361, 63 N.E.3d 81 [2016] [internal quotation marks omitted] ). Here, those factors include defendant's unexplained presence on the premises (see People v. Carducci, 143 A.D.3d 1260, 1261–1262, 38 N.Y.S.3d 678 [4th Dept. 2016], lv denied 28 N.Y.3d 1143, 52 N.Y.S.3d 295, 74 N.E.3d 680 [2017] ; People v. Ostrander, 46 A.D.3d 1217, 1218, 847 N.Y.S.2d 791 [3d Dept. 2007] ), his actions in cutting and removing the screen in a door on the victim's back porch while wearing latex gloves (see People v. Gelling, 163 A.D.3d 1489, 1492, 82 N.Y.S.3d 679 [4th Dept. 2018], amended on rearg 164 A.D.3d 1673, 82 N.Y.S.3d 759 [4th Dept. 2018], lv denied 32 N.Y.3d 1003, 86 N.Y.S.3d 762, 111 N.E.3d 1118 [2018] ; People v. Hunter, 55 A.D.3d 1052, 1053, 866 N.Y.S.2d 389 [3d Dept. 2008], lv denied 11 N.Y.3d 898, 873 N.Y.S.2d 274, 901 N.E.2d 768 [2008] ), and his flight when the homeowner confronted him (see Gelling, 163 A.D.3d at 1492, 82 N.Y.S.3d 679 ). Furthermore, viewing the evidence in light of the elements of attempted burglary in the second degree as charged to the jury (see Danielson, 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we reject defendant's contention that the verdict is against the weight of the evidence with respect to that crime (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Defendant's contentions with respect to County Court's jury charge are not preserved for our review inasmuch as defendant did not object to the jury charge as given (see People v. Clark, 142 A.D.3d 1339, 1340, 39 N.Y.S.3d 325 [4th Dept. 2016], lv denied 28 N.Y.3d 1143, 52 N.Y.S.3d 295, 74 N.E.3d 680 [2017] ; see generally CPL 470.05[2] ; People v. Robinson, 88 N.Y.2d 1001, 1001–1002, 648 N.Y.S.2d 869, 671 N.E.2d 1266 [1996] ), and we decline to exercise our power to reach those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). Finally, the sentence is not unduly harsh or severe.