Opinion
KA 03-01629.
Decided June 14, 2004.
Appeal from a judgment of the Cayuga County Court (Peter E. Corning, J.), rendered June 19, 2003. The judgment convicted defendant, after a nonjury trial, of burglary in the second degree, petit larceny, and criminal mischief in the fourth degree.
CHARLES A. MARANGOLA, MORAVIA, FOR DEFENDANT-APPELLANT.
JAMES B. VARGASON, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: WISNER, J.P., HURLBUTT, GORSKI, MARTOCHE, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a nonjury trial of burglary in the second degree (Penal Law § 140.25), petit larceny (§ 155.25), and criminal mischief in the fourth degree (§ 145.00). Defendant's contentions concerning the alleged legal insufficiency of the evidence have not been preserved for our review ( see People v. Loomis, 255 A.D.2d 916, lv denied 92 N.Y.2d 1051; see generally People v. Gray, 86 N.Y.2d 10, 19), and we decline to exercise our power to address those contentions as a matter of discretion in the interest of justice ( see CPL 470.15 [a]). Contrary to defendant's further contention, the verdict is not against the weight of the evidence with respect to the burglary charge ( see generally People v. Bleakley, 69 N.Y.2d 490, 495). Although defendant had spent four nights at the complainant's apartment with the complainant's permission, defendant had no reasonable basis for believing that he had a possessory interest in the premises after the complainant had asked him to leave the premises approximately one week earlier ( see Penal Law § 140.00; see also People v. Matuszek, 300 A.D.2d 1131, 1131-1132, lv denied 99 N.Y.2d 630; People v. Bull, 136 A.D.2d 929, lv denied 71 N.Y.2d 966). Moreover, the testimony of defendant that he believed he had a right to enter the premises was belied by his signed statement to police in which he admitted that he and his brother forced open the door to the apartment and took a DVD/VCR unit that did not belong to them, which they subsequently sold to a third party. Thus, we further conclude that the verdict is not against the weight of the evidence with respect to the petit larceny charge. Based on the testimony of the complainant, a police officer, and the owner of the building that the door or door frame was damaged, we also conclude that the verdict is not against the weight of the evidence with respect to the charge of criminal mischief ( see generally People v. Hills, 95 N.Y.2d 947, 949).
We conclude that defendant received meaningful representation ( see generally People v. Baldi, 54 N.Y.2d 137, 147). Defendant has failed to establish the lack of a tactical or strategic explanation for counsel's alleged deficiencies in representation ( see People v. Claitt, 222 A.D.2d 1038, lv denied 88 N.Y.2d 982; see also People v. Williams, 305 A.D.2d 804, 808; People v. Workman, 277 A.D.2d 1029, 1031-1032, lv denied 96 N.Y.2d 764). Finally, the sentence is not unduly harsh or severe.