Opinion
No. 468 KA 20-00661
06-10-2022
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. PRESTON L. THOMPSON, DEFENDANT-APPELLANT.
STEPHANIE R. DIGIORGIO, UTICA, FOR DEFENDANT-APPELLANT. SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (MICHAEL A. LABELLA, JR., OF COUNSEL), FOR RESPONDENT.
STEPHANIE R. DIGIORGIO, UTICA, FOR DEFENDANT-APPELLANT.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (MICHAEL A. LABELLA, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, NEMOYER, CURRAN, AND BANNISTER, JJ.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), rendered February 11, 2020. The judgment convicted defendant upon a jury verdict of burglary in the second degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of burglary in the second degree (Penal Law § 140.25 [2]), defendant contends that, in light of his acquittal of petit larceny, his conviction is not supported by legally sufficient evidence with respect to the element of intent to commit a crime in the dwelling, and the verdict is against the weight of the evidence. We reject that contention. As relevant here, a defendant is guilty of burglary in the second degree when the defendant knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein (id.). Although the People need to prove only a defendant's general intent to commit a crime in the residence, not his intent to commit a specific crime (see People v Lewis, 5 N.Y.3d 546, 552 [2005]; People v Mahboubian, 74 N.Y.2d 174, 193 [1989]), in this case, the People expressly limited their theory of the "intent to commit a crime therein" element (§ 140.25) to larceny, and thus they had to prove that defendant intended to commit that crime (see Lewis, 5 N.Y.3d at 552 n 7; People v Shealy, 51 N.Y.2d 933, 934 [1980]).
Nevertheless, the People were not required to prove that defendant actually committed the intended crime of larceny (see Mahboubian, 74 N.Y.2d at 193; People v Freeman, 103 A.D.3d 1177, 1177 [4th Dept 2013], lv denied 21 N.Y.3d 912 [2013]), and therefore the fact that the jury acquitted defendant of petit larceny has no bearing on whether the conviction of burglary in the second degree is based on legally sufficient evidence or whether the verdict is against the weight of the evidence (see e.g. People v Taylor, 163 A.D.3d 1275, 1275-1277 [3d Dept 2018], lv denied 32 N.Y.3d 1068 [2018]; People v Walton, 125 A.D.3d 900, 901 [2d Dept 2015], lv denied 25 N.Y.3d 1078 [2015]; People v Mercado, 102 A.D.3d 813, 813 [2d Dept 2013], lv denied 20 N.Y.3d 1102 [2013]).
The element of "intent to commit a crime therein" may be inferred from defendant's conduct and the surrounding circumstances (see People v Jackson, 182 A.D.3d 1034, 1035 [4th Dept 2020], lv denied 35 N.Y.3d 1046 [2020]), including the circumstances of the entry (see People v Bergman, 70 A.D.3d 1494, 1494 [4th Dept 2010], lv denied 14 N.Y.3d 885 [2010]; People v Mainella, 2 A.D.3d 1330, 1330 [4th Dept 2003], lv denied 2 N.Y.3d 742 [2004], reconsideration denied 3 N.Y.3d 660 [2004]). Here, the jury could infer defendant's intent to commit larceny in the residence from the evidence that he broke a window to enter the residence; he walked throughout the residence, as shown by the blood droplets he left in multiple locations; and he ransacked the residence (see Freeman, 103 A.D.3d at 1177; Bergman, 70 A.D.3d at 1494). Viewing the evidence in the light most favorable to the People (see People v Delamota, 18 N.Y.3d 107, 113 [2011]; People v Contes, 60 N.Y.2d 620, 621 [1983]), we conclude that there is a valid line of reasoning and permissible inferences from which a rational jury could have found defendant's intent to commit larceny in the residence proved beyond a reasonable doubt (see generally People v Danielson, 9 N.Y.3d 342, 349 [2007]; People v Bleakley, 69 N.Y.2d 490, 495 [1987]). In addition, viewing the evidence in light of the elements of the crime as charged to the jury (see Danielson, 9 N.Y.3d at 349), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495).
Defendant contends that County Court's failure to orally pronounce any award of restitution or the issuance of a money judgment during sentencing requires vacatur of a confession of judgment against defendant. We conclude, however, that the "confession[] of judgment-the amount, signing, and filing of which were not part of the court's sentence-[is] not properly before us on this appeal from [defendant's] criminal judgment of conviction" (People v Gordon, 191 A.D.3d 1367, 1368 [4th Dept 2021], lv denied 36 N.Y.3d 1120 [2021]).
The sentence is not unduly harsh or severe. Defendant's related contention that his sentence constitutes cruel and unusual punishment is unpreserved for our review (see People v Pena, 28 N.Y.3d 727, 730 [2017]; People v Gilmore, 202 A.D.3d 1453, 1454 [4th Dept 2022], lv denied - N.Y.3d - [2022]) and, in any event, is without merit (see People v Verbitsky, 90 A.D.3d 1516, 1516 [4th Dept 2011], lv denied 19 N.Y.3d 868 [2012]).