People v. Campbell
| Decision Date | 07 October 1976 |
| Citation | 54 A.D.2d 777,387 N.Y.S.2d 304 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Cedric D. CAMPBELL, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Samuel J. Castellino, Chemung County Public Defender, Elmira, for appellant.
D. Bruce Crew, III, Chemung County Dist Atty., Elmira, for respondent.
Before GREENBLOTT, J.P., and SWEENEY, KANE, MAIN and HERLIHY, JJ.
Appeal from a judgment of the Supreme Court of Chemung County, rendered September 29, 1975, upon a verdict convicting defendant of the crime of attempted burglary in the third degree and imposing a sentence of one and one-half to three years of imprisonment.
The record contains evidence that in the early morning hours of May 8, 1975 and after an establishment known as Dub's Tavern was closed, there were loud banging noises in the downstairs area thereof heard by an upstairs tenant. The tenant watched out of his window and observed the defendant walking from a rear entranceway of the establishment and then standing near a street curb a short distance from the building. The tenant then investigated and saw that the rear entranceway door had been broken open. The tenant testified to the foregoing facts and also that the defendant observed him watching from the window. The owner of the establishment testified that following the event he determined that a bottle of whiskey was missing and that when he closed the place shortly before the loud noises were heard, the rear entrance-way door was locked and in good condition.
The defendant did not testify, however, there were facts put in evidence which would have tended to establish that he might not have been the person who forced the door open. Furthermore, there was evidence that he was intoxicated, but also that he was capable of thinking and acting rationally shortly after the criminal event occurred. The defendant was indicted for the crime of burglary in the third degree and petit larceny, however, the jury found that he committed no larceny and that he did not enter the building, but did convict him of the attempt to commit burglary in the third degree.
Contrary to the defendant's assertion upon this appeal, the record contains proof beyond a reasonable doubt that the defendant was capable of forming an intent to commit a crime and that he did batter upon the door, but abandoned the project when he saw the tenant watching him after the loud noises. The circumstantial evidence in this case is not of the purely equivocal nature of that relied upon by the...
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People v. Tragni
...398 N.Y.S.2d 269, 367 N.E.2d 867; People v. Henderson, 41 N.Y.2d 233, 236, 391 N.Y.S.2d 563, 359 N.E.2d 1357; see also People v. Campbell, 54 A.D.2d 777, 387 N.Y.S.2d 304). It seems clear, however, that the statements contained in these cases were meant to pertain to and comment upon only t......
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