People v. Romero
| Decision Date | 31 May 2011 |
| Citation | 923 N.Y.S.2d 532,84 A.D.3d 695,2011 N.Y. Slip Op. 04526 |
| Parties | The PEOPLE of the State of New York, Respondent,v.Maximo ROMERO, Defendant–Appellant. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Robert S. Dean, Center for Appellate Litigation, New York (Katharine Skolnick of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Sheila L. Bautista of counsel), for respondent.
MAZZARELLI, J.P., FRIEDMAN, CATTERSON, MANZANET–DANIELS, ROMÁN, JJ.
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered June 25, 2009, convicting defendant, after a nonjury trial, of burglary in the second degree and criminal mischief in the third degree, and sentencing him, as a second violent felony offender, to concurrent terms of 7 years and 2 to 4 years, respectively, unanimously affirmed.
Defendant did not preserve his claim that, in order to prove burglary in this case, the People were required to prove defendant intended to commit a sexual assault, and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. The indictment charged defendant with entering a store with intent to commit an unspecified crime therein, and the People never limited their theory of the case to any particular intended crime ( see People v. Bess, 107 A.D.2d 844, 846, 484 N.Y.S.2d 268 [1985] ). In any event, defendant repeatedly announced his intention to sexually assault two girls hiding in the store.
Defendant's conviction of criminal mischief in the third degree was also supported by legally sufficient evidence. The evidence supports the conclusion that the reasonable cost of repairing the damaged property ( see People v. Garcia, 29 A.D.3d 255, 263, 812 N.Y.S.2d 66 [2006], lv. denied 7 N.Y.3d 789, 821 N.Y.S.2d 818, 854 N.E.2d 1282 [2006] ) exceeded $250. Defendant's argument concerning the element of intent to damage property is unpreserved, and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits.
Defendant requested that the court consider the lesser included offenses of criminal trespass in the second degree and criminal mischief in the fourth degree. However, he did not set forth any basis for those requests. Accordingly, his present arguments are unpreserved ( see e.g. People v. Liner, 262 A.D.2d 250, 690 N.Y.S.2d 457 [1999], lv. denied 93 N.Y.2d 1021, 697 N.Y.S.2d 580, 719 N.E.2d 941 [1999] ),...
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... ... The indictment charged defendant with entering the apartment building with [962 N.Y.S.2d 131]intent to commit an unspecified crime therein, and the People never limited their theory of the case to a particular intended crime ( see People v. Romero, 84 A.D.3d 695, 695, 923 N.Y.S.2d 532 [1st Dept. 2011], lv. denied17 N.Y.3d 955, 936 N.Y.S.2d 81, 959 N.E.2d 1030 [2011];see also People v. Smalls, 92 A.D.3d 420, 420, 937 N.Y.S.2d 222 [1st Dept. 2012], lv. denied18 N.Y.3d 998, 945 N.Y.S.2d 653, 968 N.E.2d 1009 [2012] ).Defendant did not preserve ... ...
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People v. Smalls
... ... That claim is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. The People never expressly limited themselves to that theory ( see People v. Romero, 84 A.D.3d 695, 923 N.Y.S.2d 532 [2011] ), and the court's charge contained no such limitation. In any event, the evidence fully supports the theory that defendant chased the employee into the nonpublic area for the purpose of continuing his assault on that person.[937 N.Y.S.2d 224] [2] Defendant ... ...