Opinion
2013-04-2
The PEOPLE of the State of New York, Respondent, v. Carlos TAMAYO, Defendant–Appellant.
Steven Banks, The Legal Aid Society, New York (Allen Fallek of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sylvia Wertheimer of counsel), for respondent.
Steven Banks, The Legal Aid Society, New York (Allen Fallek of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sylvia Wertheimer of counsel), for respondent.
MAZZARELLI, J.P., MOSKOWITZ, DeGRASSE, FEINMAN, CLARK, JJ.
Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), rendered November 13, 2009, convicting defendant, after a jury trial, of burglary in the second degree, and sentencing him to a term of 3 1/2 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 supports the inference that when defendant broke two reinforced glass doors in order to gain entry into secured portions of an apartment building, he did so with the intent to commit a crime therein.
The jury's mixed verdict does not warrant a different conclusion ( see People v. Rayam, 94 N.Y.2d 557, 708 N.Y.S.2d 37, 729 N.E.2d 694 [2000];People v. Yanayaco, 99 A.D.3d 416, 952 N.Y.S.2d 110 [1st Dept. 2012] ). To the extent that defendant is arguing that his acquittal of a weapon charge requiring unlawful intent rendered the evidence legally insufficient with respect to the intent element of burglary, that argument is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. Contrary to defendant's argument, to convict him of burglary the People were not required to prove that he intended to use the knife in his possession to threaten, scare or stab anyone. The indictment charged defendant with entering the apartment building with intent to commit an unspecified crime therein, and the People never limited their theory of the case to a particular intended crime ( see People v. Romero, 84 A.D.3d 695, 695, 923 N.Y.S.2d 532 [1st Dept. 2011], lv. denied17 N.Y.3d 955, 936 N.Y.S.2d 81, 959 N.E.2d 1030 [2011];see also People v. Smalls, 92 A.D.3d 420, 420, 937 N.Y.S.2d 222 [1st Dept. 2012], lv. denied18 N.Y.3d 998, 945 N.Y.S.2d 653, 968 N.E.2d 1009 [2012] ).
Defendant did not preserve his challenge to the court's supplemental jury charge, and we decline to review it in the interest of justice. As an alternative holding, we find that the court provided a meaningful and correct response to the deliberating jury's request for information ( see People v. Santi, 3 N.Y.3d 234, 248–249, 785 N.Y.S.2d 405, 818 N.E.2d 1146 [2004];People v. Malloy, 55 N.Y.2d 296, 449 N.Y.S.2d 168, 434 N.E.2d 237 [1982],cert. denied459 U.S. 847, 103 S.Ct. 104, 74 L.Ed.2d 93 [1982] ).