Opinion
November 14, 1988
Appeal from the Supreme Court, Kings County (Garry, J.).
Ordered that the judgment is affirmed.
The defendant's contention that the evidence introduced at the trial was legally insufficient to prove intent is without merit. Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), it was legally sufficient to establish the defendant's guilt. It is not necessary to establish that a particular crime was intended to be committed or that the intended crime was actually committed. Insofar as intent is subjective, it may be inferred from the defendant's conduct and the surrounding circumstances (People v Mackey, 49 N.Y.2d 274). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15).
Where, as here, direct and circumstantial evidence has been presented, the so-called "moral certainty" standard does not apply (see, People v. Barnes, 50 N.Y.2d 375). In the case at bar, the People successfully demonstrated, by the defendant's admission and testimony by the owner of the premises, that there was unlawful entry, defined by Penal Law § 140.00 (5) as an entry which is "not licensed or privileged". Further, the evidence of the broken loading door lock and roof hatch of the building are signs of forced entry from which it is permissible to infer that the entry was effectuated with the intent to commit a crime therein (see, People v. Barnes, supra, at 381).
The defendant has not alleged any facts indicating that his trial counsel's representation was constitutionally inadequate (see, People v. Dudley, 110 A.D.2d 652). Furthermore, since the defendant admitted that he was on the premises, counsel's concession of that fact on summation was a matter of trial tactics. This court will not second-guess trial strategy or confuse it with the ineffective representation of counsel (see, People v. Pacheco, 135 A.D.2d 744, 745). Kunzeman, J.P., Weinstein, Rubin and Kooper, JJ., concur.