People v. Wimberly

2 Citing cases

  1. People v. Brown

    255 A.D.2d 686 (N.Y. App. Div. 1998)   Cited 4 times

    Nor are we of the view that County Court erred in finding that defendant's reentry into the apartment, after the victim's unsuccessful attempt to obtain help, constituted a second burglary, separate and distinct from that which occurred when he initially entered the premises. Defendant's statements, as recounted by the victim, provide ample basis for a factual finding that he first entered the apartment with the intent to commit the crimes of unlawful imprisonment, and possibly robbery, but that upon returning to find the victim outside he became angry and raped her. The second entry, temporally separate from the first and motivated, as it was, by an intent to commit different crimes from those originally contemplated, was therefore a distinct event, "justifying separate prosecution, separate conviction and consecutive sentences" ( Matter of Di Lorenzo v. Murtagh, 36 N.Y.2d 306, 310; see, People v. Wimberly, 145 A.D.2d 823, 825, lv denied 73 N.Y.2d 1024; People v. Brown, 66 A.D.2d 223, 226). The victim's testimony that defendant had threatened to kill her while pointing a large kitchen knife in her direction amply supports the conclusion that defendant "[u]se[d] or threaten[ed] the immediate use of a dangerous instrument" (Penal Law ยง 140.30), and was therefore guilty of burglary in the first degree ( see, id.). Defense counsel's attempt to cast doubt on the veracity of this account (which the victim reaffirmed on redirect examination), by referring to her prior inconsistent statement on the issue, merely raised a credibility question, which was resolved (not unreasonably, in our view) in her favor.

  2. People v. Kilmer

    228 A.D.2d 808 (N.Y. App. Div. 1996)   Cited 4 times

    Turning now to the suppression issue, which has been preserved for our consideration by express statutory provision (CPL 710.70), we conclude that County Court did not err in its determination. The record of the suppression hearing provides ample support for County Court's conclusion that the challenged statement, made in Hudson City Court at the time of defendant's arraignment on the felony complaint, was not the product of any questioning but, rather, was spontaneously volunteered after defendant had been fully apprised of his rights ( see, e.g., People v. Rivers, 56 N.Y.2d 476; People v. Wimberly, 145 A.D.2d 823, 824-825, lv denied 73 N.Y.2d 1024). Cardona, P.J., Mikoll, White and Spain, JJ., concur.