Opinion
June 8, 1992
Appeal from the Supreme Court, Queens County (Finnegan, J.).
Ordered that the judgment is modified, on the law, by vacating the defendant's conviction of burglary in the first degree under the first count of the indictment and the sentence imposed thereon; as so modified, the judgment is affirmed. No questions of fact have been raised or considered.
The complainant, who had just returned home, heard noises emanating from the second story of his house, and upon finding his shotgun missing from its place behind a couch, immediately ran to a neighbor's residence to summon the police. As the responding officer waited behind a tree, the defendant exited through the side door carrying the shotgun in both hands, and, according to the officer's testimony, using it to hold bags of other items in his arms. When the officer demanded that he "freeze", the defendant reentered the house. Shortly thereafter, the defendant jumped from a second-story window and fled through neighboring yards until he was captured and subdued. Various items of stolen property taken from the complainant's house were found on the defendant's person.
The evidence presented was insufficient to demonstrate that the defendant "consciously display[ed]" the shotgun "with the intent of compelling an owner of property to deliver it up or for the purpose of preventing or overcoming resistance to the taking" (People v. Baskerville, 60 N.Y.2d 374, 381; see also, People v. Smith, 142 A.D.2d 619; People v. Moore, 134 A.D.2d 530; People v. Robinson, 170 A.D.2d 702; cf., People v. Smith, 182 A.D.2d 725). That the defendant possessed the firearm, without more, does not satisfy this requirement of "conscious display" (see, People v. Carrington, 127 A.D.2d 677). Furthermore, although the complainant testified that he had been "a little leery" when he saw the defendant in possession of his shotgun, which he believed to be loaded, neither he nor the arresting officer testified that they believed that they were being threatened with use of the gun (see, People v. Taylor, 133 A.D.2d 866; cf., People v. Watts, 151 A.D.2d 307; People v. Brown, 160 A.D.2d 172; People v. Parker, 163 A.D.2d 171; People v. Carrington, supra).
The defendant contends that he was denied due process of law because he was not present at the Sandoval conference held in the court's chambers. This contention, raised for the first time after the conclusion of trial, is without merit (see, People v Floyd, 179 A.D.2d 770). There is no indication that the parties attached any significance to the defendant's absence or that any dispute concerning the defendant's criminal record was raised at the conference (cf., People v. Jenkins, 157 A.D.2d 854). The defendant has failed to demonstrate that he was in any way prejudiced by his absence from the Sandoval conference or that his ability to defend himself was in any way compromised (see, People v. Floyd, supra).
We have reviewed the defendant's contention that his sentence was excessive, and find it to be without merit. Mangano, P.J., Bracken, Balletta and O'Brien, JJ., concur.