People v. Mutterperl

• Decision Date: 11 July 2012
• Parties: The PEOPLE, etc., respondent, v. Bernard MUTTERPERL, appellant.
• Court: New York Supreme Court — Appellate Division

97 A.D.3d 699
948 N.Y.S.2d 383
2012 N.Y. Slip Op. 05553

The PEOPLE, etc., respondent,
v.
Bernard MUTTERPERL, appellant.

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

July 11, 2012.

Mischel & Horn, P.C., New York, N.Y. (Richard E. Mischel and Lisa Marlow Wolland of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Camille O'Hara Gillespie of counsel), for respondent.

RUTH C. BALKIN, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ.

[97 A.D.3d 699]Appeal by the defendant from a judgment of the Supreme Court, Kings County (DiMango, J.), rendered August 26, 2009, convicting him of attempted kidnapping in the second degree, burglary in the second degree, unlawful imprisonment in the second degree, and endangering the welfare of a child, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

[948 N.Y.S.2d 384]

Viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of attempted kidnapping in the second degree beyond a reasonable doubt ( see People v. Antonio, 58 A.D.3d 515, 516, 872 N.Y.S.2d 17;People v. Cruz, 296 A.D.2d 22, 25, 745 N.Y.S.2d 528;People v. Carter, 263 A.D.2d 958, 958–959, 695 N.Y.S.2d 458;People v. Cassano, 254 A.D.2d 92, 92–93, 681 N.Y.S.2d 1). The defendant's intent may be inferred from his conduct and the surrounding circumstances ( see People v. Bracey, 41 N.Y.2d 296, 301, 392 N.Y.S.2d 412, 360 N.E.2d 1094;see e.g. People v. King, 85 A.D.3d 820, 925 N.Y.S.2d 561).

The defendant's contention that the evidence was legally insufficient to establish his guilt beyond a reasonable doubt of burglary in the second degree, unlawful imprisonment in the second degree, and endangering the welfare of a child is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 872 N.Y.S.2d 395, 900 N.E.2d 946). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient[97 A.D.3d 700]to establish the defendant's guilt beyond a reasonable doubt of burglary in the second degree ( see People v. Occhione, 94 A.D.3d 1021, 942 N.Y.S.2d 185;People v. Albanese, 84 A.D.3d 1107, 922 N.Y.S.2d 813), unlawful imprisonment in the second degree ( see Matter of David H., 69 N.Y.2d 792, 793, 513 N.Y.S.2d 111, 505 N.E.2d 621), and endangering the welfare of a child ( see People v. Smith, 69 A.D.3d 657, 891 N.Y.S.2d 294;People v. Bray, 46 A.D.3d 1232, 1234, 848 N.Y.S.2d 738).

Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's...