People v. Tricic

Nov 17, 2006
Versions:34 A.D.3d 1319
825 N.Y.S.2d 616

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, burglary in the second degree (Penal Law § 140.25 [2]). Contrary to defendant’s contention, the evidence is legally sufficient to support the conviction of burglary (see People v McClusky, 12 AD3d 1174, 1175 [2004], lv denied 4 NY3d 765 [2005]; People v Plume, 306 AD2d 916, 917 [2003], lv denied 100 NY2d 644 [2003]; People v Murray, 278 AD2d 898, 899 [2000], lv denied and dismissed 96 NY2d 804 [2001]; see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The element of larcenous intent “may be inferred from the circumstances of the entry” (People v Gaines, 74 NY2d 358, 362 n 1 [1989]; see People v Barnes, 50 NY2d 375, 381 [1980]; People v Mackey, 49 NY2d 274, 280 [1980]) and from the theft completed inside the premises (see Murray, 278 AD2d at 899; People v Rodriguez, 200 AD2d 775, 776 [1994], lv denied 83 NY2d 876 [1994]). We reject the further contention of defendant that, based upon his intoxication, he was unable to form the requisite intent to commit a crime. The conflicting testimony concerning defendant’s intoxication presented a credibility issue for the jury (see People v Ramirez, 278 AD2d 897 [2000], lv denied 96 NY2d 833 [2001]; People v Jackson, 269 AD2d 867 [2000], lv denied 95 NY2d 798 [2000]; People v ‘Abdul-Malik, 156 AD2d 1023 [1989], lv denied 75 NY2d 866 [1990]). Defendant failed to preserve for our review his contention that he was denied a fair trial by prosecutorial misconduct on summation (see CPL 470.05 [2]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]; People v Dean, 28 AD3d 1118, 1119 [2006]). Defendant also failed to preserve for our review his contention concerning judicial bias (see People v Prado, 4 NY3d 725, 726 [2004], rearg denied 4 NY3d 795 [2005]) and that contention lacks merit in any event. County Court did not evince bias against defendant in apprising the jury of a fact conclusively established by defendant’s prior conviction (see generally People v Matos, 28 AD3d 1120, 1121 [2006]; People v Maxam, 301 AD2d 791, 793 [2003], lv denied 99 NY2d 617 [2003]; People v Darling, 276 AD2d 922, 924 [2000], lv denied 96 NY2d 733 [2001]). Finally, the sentence is not unduly harsh or severe. Present—Kehoe, J.P., Martoche, Smith and Pine, JJ.