People v. Lyng

Decision Date19 October 1989
Citation154 A.D.2d 787,546 N.Y.S.2d 464
PartiesThe PEOPLE of the State of New York, Respondent, v. Terry D. LYNG, Appellant.
CourtNew York Supreme Court — Appellate Division

Richard F. DeVall, Saratoga Springs, for appellant.

David A. Wait, Dist. Atty., Ballston Spa, for respondent.

Before MAHONEY, P.J., and KANE, CASEY, WEISS and HARVEY, JJ.

WEISS, Justice.

Appeal from a judgment of the County Court of Saratoga County (Williams, J.), rendered January 12, 1988, upon a verdict convicting defendant of the crime of burglary in the third degree.

At about 4:30 A.M. on October 19, 1986, Police Officers Gary Forward and Linda Quattrini responded to a radio report of breaking glass at 45 Caroline Street in the City of Saratoga Springs, Saratoga County. The officers arrived in less than one minute and discovered the glass in the door of the Turf Bar and Grill had been broken. When Police Officers Warren Wildy and Christopher Kuznia arrived, three of them entered the premises and discovered defendant crouched behind a jukebox. He had in his possession a lighted penlight and $5.75 in change. No one else was found in the building. The owner had closed the bar at 4:00 A.M., secured the premises and emptied the cash register, except for some change left in the open register drawer.

At trial, defendant raised the sole defense of intoxication. Richard Perry, a neighbor, testified that defendant was drinking wine when he joined him at 11:00 P.M. on October 18, 1986. They drank Scotch whiskey until 2:00 A.M. when Perry left in a fairly well-intoxicated condition. At that time defendant, who drank more than Perry, still had some Scotch left. On rebuttal, Wildy was recalled and testified that he had previously observed defendant in both intoxicated and not intoxicated conditions and that he believed that defendant was not intoxicated at the time of arrest. Defendant was found guilty of burglary in the third degree by a jury and now appeals.

During trial, defendant called Correction Sergeant Brendan Varley to testify to events occurring when he came on duty at the Saratoga County Jail at 3:00 P.M. on October 19, 1986. Varley was permitted to describe defendant as "quite nervous and shaky". County Court was correct in disallowing Varley's testimony regarding conversations with the jail physician about defendant's condition or that the physician telephoned a pharmacy to prescribe Librium for defendant. Repetition of Varley's observations would be cumulative and the conversations with the physician were inadmissible hearsay. In any event, the prescribed treatment was irrelevant to events more than 10 hours earlier. Defendant neither produced the physician nor pharmacy records. The court's ruling on relevancy and hearsay was entirely appropriate (see, People v. Westergard, 113 A.D.2d 640, 497 N.Y.S.2d 65, affd. 69 N.Y.2d 642, 511 N.Y.S.2d 587, 503 N.E.2d 1018).

Defendant argues that County Court's preliminary instructions implied that the jury should reach a verdict of guilty. We disagree. Prompt objections were sustained and clear, curative instructions were given. Defendant's contrary interpretation is not persuasive. Neither further curative instructions nor a mistrial were requested (see, People v. Breland, 109 A.D.2d 890, 487 N.Y.S.2d 82). In any event, any possible prejudice had been dispelled.

We further find that the evidence was legally sufficient to establish defendant's intent to commit a crime when he entered the premises. On an appeal from a verdict of guilty, the evidence must be viewed in a light most favorable to the People and it must be presumed that the jury credited the People's witnesses (People v. Malizia, 62 N.Y.2d 755, 757, 476 N.Y.S.2d 825, 465 N.E.2d 364, cert. denied 469 U.S. 932, 105 S.Ct. 327, 83 L.Ed.2d 264; People v. Scallero, 122 A.D.2d 350, 504 N.Y.S.2d 318). Intent may be inferred from the circumstances of the breaking and entering(People v. Mackey, 49 N.Y.2d 274, 425 N.Y.S.2d 288, 401 N.E.2d 398; People v. Daye, (App.Div.), 541 N.Y.S.2d 85; People v. Wright, 92 A.D.2d 722, 461 N.Y.S.2d 130). It was within the province of the jury to accept or reject defendan...

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11 cases
  • People v. Slater
    • United States
    • New York Supreme Court — Appellate Division
    • October 25, 1990
    ...Malizia, 62 N.Y.2d 755, 757, 476 N.Y.S.2d 825, 465 N.E.2d 364, cert. denied 469 U.S. 932, 105 S.Ct. 327, 83 L.Ed.2d 264; People v. Lyng, 154 A.D.2d 787, 546 N.Y.S.2d 464, lv. denied 74 N.Y.2d 950, 550 N.Y.S.2d 284, 549 N.E.2d 486; People v. Scallero, 122 A.D.2d 350, 504 N.Y.S.2d 318). Our r......
  • People v. Zebrowski
    • United States
    • New York Supreme Court — Appellate Division
    • November 24, 1993
    ...terms, taken as a whole, correctly placed the burden of proving guilt beyond a reasonable doubt upon the prosecution (People v. Lyng, 154 A.D.2d 787, 789, 546 N.Y.S.2d 464, lv. denied 74 N.Y.2d 950, 550 N.Y.S.2d 284, 549 N.E.2d 486). In our view something additional to the mere use of the t......
  • People v. Hathaway
    • United States
    • New York Supreme Court — Appellate Division
    • March 1, 1990
    ...in a light most favorable to the People and it must be presumed that the jury credited the People's witnesses" (People v. Lyng, 154 A.D.2d 787, 789, 546 N.Y.S.2d 464, 465; see, People v. Malizia, 62 N.Y.2d 755, 757, 476 N.Y.S.2d 825, 465 N.E.2d 364, cert denied 469 U.S. 932, 105 S.Ct. 327, ......
  • People v. Cooper
    • United States
    • New York Supreme Court — Appellate Division
    • February 1, 1990
    ...Malizia, 62 N.Y.2d 755, 757, 476 N.Y.S.2d 825, 465 N.E.2d 364, cert denied 469 U.S. 932, 105 S.Ct. 327, 83 L.Ed.2d 264; People v. Lyng, 154 A.D.2d 787, 546 N.Y.S.2d 464; People v. Scallero, 122 A.D.2d 350, 504 N.Y.S.2d 318). Our review of the record shows that the evidence overwhelmingly su......
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