People v. McFarland

• Decision Date: 02 May 2013
• Citation: 964 N.Y.S.2d 286,106 A.D.3d 1129,2013 N.Y. Slip Op. 03129
• Parties: The PEOPLE of the State of New York, Respondent, v. Karon McFARLAND, Appellant.
• Court: New York Supreme Court — Appellate Division

106 A.D.3d 1129
964 N.Y.S.2d 286
2013 N.Y. Slip Op. 03129

The PEOPLE of the State of New York, Respondent,
v.
Karon McFARLAND, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

May 2, 2013.

[964 N.Y.S.2d 287]

Brian M. Callahan, Schenectady, for appellant.

Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.

Before: LAHTINEN, J.P., STEIN, SPAIN and GARRY, JJ.

GARRY, J.

[106 A.D.3d 1129]Appeal from a judgment of the Supreme Court (Coccoma, J.), rendered March 21, 2011 in Schenectady County, upon a verdict convicting defendant of the crimes of assault in the first degree, burglary in the first degree (four counts) and criminal possession of a weapon in the second degree (two counts).

In February 2010, the victim was shot in the face in her home in the City of Schenectady, Schenectady County. Thereafter, defendant was arrested and charged with several crimes related to the shooting. Following a jury trial, he was convicted of assault in the first degree, burglary in the first degree (four counts) and criminal possession of a weapon in the second degree (two [106 A.D.3d 1130]counts), and sentenced to an aggregate prison term of 31 years followed by five years of postrelease supervision. Defendant appeals.

Initially, we find the evidence that defendant “knowingly enter[ed]” the victim's dwelling legally sufficient to support his burglary convictions (Penal Law § 140.30). The victim testified that she was inside her second-floor apartment when her doorbell began ringing repeatedly, and she heard defendant—a former friend whom she described as her “stalker”—outside the locked first-floor front door, demanding to be let in. She refused and attempted to ignore him, but then, upon hearing banging sounds, she stepped onto a stair landing where she saw defendant kicking repeatedly at a plexiglass window in the door until it fell inward. The victim remembered nothing more of

[964 N.Y.S.2d 288]

the incident, but a police officer testified that, upon arriving at the scene shortly thereafter, he found the window on the floor inside the locked door, leaving a space large enough to step through; the victim was lying on the stair landing with gunshot wounds. “[T]he entry element of burglary is satisfied ‘when a person intrudes within a building, no matter how slightly, with any part of his or her body’ ” ( People v. Prince, 51 A.D.3d 1052, 1054, 857 N.Y.S.2d 320 [2008],lv. denied10 N.Y.3d 938, 862 N.Y.S.2d 345, 892 N.E.2d 411 [2008], quoting People v. King, 61 N.Y.2d 550, 555, 475 N.Y.S.2d 260, 463 N.E.2d 601 [1984] ), and kicking in a window constitutes an entry even when the perpetrator then flees without further intruding into the building ( see People v. Cleveland, 281 A.D.2d 815, 816, 721 N.Y.S.2d 876 [2001],lv. denied96 N.Y.2d 900, 730 N.Y.S.2d 797, 756 N.E.2d 85 [2001] ). Accordingly, even before considering the additional evidence discussed below, there was “a valid line of reasoning and permissible inferences that could lead a rational person to the conclusion” that defendant entered the victim's home ( People v. Hall, 57 A.D.3d 1222, 1225, 870 N.Y.S.2d 508 [2008],lv. denied12 N.Y.3d 817, 881 N.Y.S.2d 24, 908 N.E.2d 932 [2009] ).

Defendant failed to preserve the legal sufficiency challenges he now raises to his other convictions, but in reviewing his claim that the verdict is contrary to the weight of the evidence, this Court evaluates the evidence adduced as to each element of the crimes ( see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007];People v. Tucker, 95 A.D.3d 1437, 1438, 944 N.Y.S.2d 383 [2012],lv. denied19 N.Y.3d 1105, 955 N.Y.S.2d 561, 979 N.E.2d 822 [2012] ). With regard to his convictions for criminal possession of a weapon in the second degree, he contends that, as no witnesses saw him carrying a weapon and no weapon or shell casings attributable to the crime were ever found, the People failed to prove that he “possesse[d] a loaded firearm” (Penal Law § 265.03[1][b]; seePenal Law § 265.03[3] ). However, a State Police firearms examiner testified that spent bullets found at the scene were fired either by a pistol or a revolver, thus [106 A.D.3d 1131]establishing that the weapon used was a firearm within the...