Opinion
02-07-2017
The PEOPLE of the State of New York, Respondent, v. Baldemiro LOPEZ, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Ben A. Schatz of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Jeffrey A. Wojcik of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Ben A. Schatz of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jeffrey A. Wojcik of counsel), for respondent.
FRIEDMAN, J.P., ANDRIAS, MOSKOWITZ, KAPNICK, KAHN, JJ.
Judgment, Supreme Court, New York County (Richard D. Carruthers, J.), rendered April 28, 2015, convicting defendant, after a jury trial, of burglary in the second degree, criminal contempt in the first and second degrees, endangering the welfare of a child (two counts) and resisting arrest, and sentencing him to an aggregate term of eight years, unanimously affirmed.
The verdict was based on 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] ). The evidence warranted an inference that, beyond his unlawful entry into the victim's apartment, defendant intended to violate another provision of the order of protection obtained by the victim against him, namely the provision requiring him to stay away from her and to not communicate with her (see People v. Cajigas, 82 A.D.3d 544, 545, 918 N.Y.S.2d 463 [1st Dept.2011], affd. 19 N.Y.3d 697, 955 N.Y.S.2d 296, 979 N.E.2d 240 [2012] ). The evidence also demonstrated defendant's pattern of violent and hostile behavior toward the victim, permitting the inference that he intended to enter the apartment in order to assault or threaten her (see People v. Polanco, 279 A.D.2d 307, 308, 718 N.Y.S.2d 830 [1st Dept.2001], lv. denied 96 N.Y.2d 833, 729 N.Y.S.2d 454, 754 N.E.2d 214 [2001] ; People v. Melendez, 206 A.D.2d 270, 271, 613 N.Y.S.2d 867 [1st Dept.1994], lv. denied 84 N.Y.2d 870, 618 N.Y.S.2d 16, 642 N.E.2d 335 [1994] ).
The court providently exercised its discretion when it denied defendant's request to introduce medical records relating to an injury he sustained about six months before the burglary. In the absence of any explanatory testimony, these records did not shed any light on defendant's physical condition at the time of the burglary, including his ability to enter the victim's apartment by climbing a fire escape (see People v. Ortiz, 259 A.D.2d 271, 686 N.Y.S.2d 386 [1st Dept.1999], lv. denied 93 N.Y.2d 901, 689 N.Y.S.2d 713, 711 N.E.2d 989 [1999] ). Moreover, the voluminous records would have been likely to confuse the jurors and encourage them to speculate and appoint themselves as medical experts regarding the time it would take particular injuries to heal. Since defendant never asserted that he was constitutionally entitled to introduce these records, he only raised a question of state evidentiary law (see People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61 [2006] ; see also Smith v. Duncan, 411 F.3d 340, 348–349 [2d Cir.2005] ), and we decline to review his unpreserved constitutional claim in the interest of justice. As an alternative holding, we reject it on the merits (see Crane v. Kentucky, 476 U.S. 683, 689–690, 106 S.Ct. 2142, 90 L.Ed.2d 636 [1986] ).
We perceive no basis for reducing the sentence.