People v. Pendarvis

• Decision Date: 07 October 2016
• Citation: 143 A.D.3d 1275,39 N.Y.S.3d 348,2016 N.Y. Slip Op. 06592
• Parties: The PEOPLE of the State of New York, Respondent, v. Winston R. PENDARVIS, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

143 A.D.3d 1275
39 N.Y.S.3d 348
2016 N.Y. Slip Op. 06592

The PEOPLE of the State of New York, Respondent,
v.
Winston R. PENDARVIS, Defendant–Appellant.

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

Oct. 7, 2016.

39 N.Y.S.3d 349

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of Counsel), for Defendant–Appellant.

Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Nicholas T. Texido of Counsel), for Respondent.

PRESENT: PERADOTTO, J.P., CARNI, DeJOSEPH, NEMOYER, AND CURRAN, JJ.

MEMORANDUM:

143 A.D.3d 1275

Defendant appeals from a judgment convicting him, upon a jury verdict, of burglary in the second degree (Penal Law § 140.25[2] ). We reject defendant's contention that the evidence is legally insufficient to support the conviction because the People did not establish that he entered the victims' house with intent to commit a crime therein (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). It is well established that “[a] defendant's intent to commit a crime may be inferred from the circumstances of the entry ..., as well as from defendant's actions and assertions when confronted” (People v. Maier, 140 A.D.3d 1603, 1603–1604, 34 N.Y.S.3d 544 [internal quotation marks omitted] ). Here, we conclude that there is legally sufficient evidence from which a jury could infer defendant's criminal intent based on those factors, i.e., defendant was on the victims' premises without any explanation, broke a screen door, entered the victims' house, and immediately fled, albeit slowly and calmly, after one of the victims saw him in the house (see People v. Beaty, 89 A.D.3d 1414, 1416–1417, 932 N.Y.S.2d 280, affd. 22 N.Y.3d 918, 977 N.Y.S.2d 172, 999 N.E.2d 535 ; see also People v. Hymes, 132 A.D.3d 1411, 1411–1412, 17 N.Y.S.3d 561, lv. denied 26 N.Y.3d 1146, 32 N.Y.S.3d 60, 51 N.E.3d 571 ; People v. Bergman, 70 A.D.3d 1494, 1494, 894 N.Y.S.2d 635, lv. denied 14 N.Y.3d 885, 903 N.Y.S.2d 774, 929 N.E.2d 1009 ). Viewing the evidence in light of the elements of the crime as charged to the jury (see

143 A.D.3d 1276

People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we further conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).

Contrary to defendant's contention, the People articulated a sufficient race-neutral explanation for using a peremptory challenge to remove a prospective juror (see People v. Barber, 156 A.D.2d 1022, 1023, 549 N.Y.S.2d 313, lv. denied 75 N.Y.2d 866, 553 N.Y.S.2d 298, 552 N.E.2d 877 ). Defendant failed to preserve for our review his related contention that the prosecutor's explanation for striking a prospective juror

39 N.Y.S.3d 350

in response to his Batson challenge was pretextual (see People v. Cooley, 48 A.D.3d 1091, 1092, 851 N.Y.S.2d 771, lv. denied 10 N.Y.3d 861, 860 N.Y.S.2d 487, 890 N.E.2d 250 ; People v. Dandridge, 26 A.D.3d 779, 779–780, 809 N.Y.S.2d 353, lv. denied 9 N.Y.3d 1032, 852 N.Y.S.2d 18, 881 N.E.2d 1205 ), 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] ).

Defendant contends that County Court improperly permitted the male victim to give testimony with respect to a certain statement that the female victim made to him at the time of the burglary. According to defendant, that testimony constituted hearsay and improperly bolstered the female victim's...