People v. Dwight

Jan 5, 1993
Versions:189 A.D.2d 566
592 N.Y.S.2d 10
1993 N.Y. App. Div. LEXIS 26

— Judgment, Supreme Court, New York County (Nicholas Figueroa, J.) rendered February 21, 1991, convicting defendant, after a jury trial, of burglary in the second degree, and bail jumping in the second degree, and sentencing him as a second felony offender to consecutive terms of ZVi to 7 years and IVz to 3 years, respectively, unanimously affirmed.

Defendant was apprehended by a security guard after he *567left a hotel area which had signs of forced entry. Defendant was carrying numerous hotel tablecloths, a screwdriver, and a nut pick.

Viewing the evidence in a light most favorable to the People, under the standards set forth in People v Bleakley (69 NY2d 490, 495), defendant’s guilt was proved beyond a reasonable doubt by overwhelming evidence.

Defendant’s contention that there was insufficient evidence to sustain a finding that he was guilty of burglary in the second degree, since the part of the hotel building he entered was not used for residential purposes is without merit (see, Penal Law § 140.00 [2]; People v Johnson, 162 AD2d 267, lv denied 76 NY2d 894).

Viewing the evidence in a light most favorable to defendant, there is no reasonable view of the evidence which would support a factual finding that defendant committed a burglary, but that the premises were not a dwelling under Penal Law § 140.00 (2) and (3). Nor was there any reasonable view of the evidence that defendant committed criminal trespass, but lacked the intent to commit a crime upon entering the hotel. Defendant was apprehended while carrying burglar’s tools, in proximity to a locked gate, which bore signs of forced entry, carrying stolen property. Thus, it was not error for the court to refuse to charge any lesser included offenses (see, e.g., People v Evans, 135 AD2d 648, lv denied 71 NY2d 895; People v Lopez, 176 AD2d 468, lv denied 79 NY2d 860; People v McCarron, 114 AD2d 977).

Defendant’s remaining contentions are unpreserved, or are meritless. Concur — Sullivan, J. P., Carro, Wallach, Asch and Rubin, JJ.