People v. Burnett

205 A.D.2d 792, 614 N.Y.S.2d 34, 1994 N.Y. App. Div. LEXIS 6578

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Leahy, J.), rendered May 6, 1993, convicting her of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the 15-year-old defendant’s guilt of felony murder based on the underlying felony of burglary in the second degree (see, Penal Law §§ 30.00, 140.25; People v Johnson, 185 AD2d 860; cf., People v Smith, 152 AD2d 56). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]).

Credible evidence adduced at trial placed the defendant in the victim’s apartment in February 1980, the month and year that she was found dead there, tied in a chair. The evidence further showed that the 95-pound, 70-year-old victim initially invited the defendant into her apartment. The defendant’s authorization to lawfully remain in the apartment terminated, however, when she took the victim’s money, and then hit her in the face with a shoe and tied her up with electrical cord when the victim threatened to call the police (see, People v Gaines, 74 NY2d 358, 363; People v DeLarosa, 172 AD2d 156, 157). The victim died of a heart attack caused by the stress and fright associated with the defendant’s attack upon her. With her death, all of the elements of felony murder were satisfied.

We have examined the defendant’s remaining contentions and find them to be without merit. Sullivan, J. P., Balletta, Copertino and Santucci, JJ., concur.