People v. Carrion

Appellate Division of the Supreme Court of New York

People v. Carrion

165 A.D.2d 671, 564 N.Y.S.2d 10, 1990 N.Y. App. Div. LEXIS 11025

Appellate Division of the Supreme Court of the State of New York·Decided September 11, 1990·Published·Cited by 1 cases

Opinion

Judgment of the Supreme Court, Bronx County (Joseph Cerbone, J.), rendered May 14, 1982, convicting defendant, after jury trial, of burglary in the third degree (Penal Law § 140.20) and petit larceny (Penal [672]*672Law § 155.25) and sentencing him, as a second felony offender, to an indeterminate term of imprisonment of from 2 to 4 years on the burglary count and a determinate term of one year on the petit larceny count, to run concurrently, is unanimously affirmed.

The evidence was legally sufficient to warrant denial of defendant’s motion, pursuant to CPL 290.10 (1), for a trial order of dismissal. In reviewing the legal sufficiency of the People’s evidence, all questions as to the quality or weight of the evidence must be deferred, the inquiry being whether the competent evidence, if accepted as true, establishes every element of the offense charged (People v Sabella, 35 NY2d 158, 167). Contrary to defendant’s arguments, evidence that defendant was found in an area of the basement to which access had been gained by breaking locks and cutting through the wire-mesh doors, with property belonging to another, provided sufficient evidence of intent and unlawful entry. (People v Barnes, 50 NY2d 375, 381.) Further, on review of the entire record, we find that defendant’s conviction accorded with the weight of the evidence.

We have not considered evidence presented on this appeal for the first time by defendant pro se, since it was not before the court below and conclude, in any event, that it is insufficient in both form and substance to disturb the judgment appealed from.

Concur — Murphy, P. J., Kupferman, Rosenberger, Kassal and Ellerin, JJ.

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Judgment of the Supreme Court, Bronx County (Joseph Cerbone, J.), rendered May 14, 1982, convicting defendant, after jury trial, of burglary in the third degree (Penal Law § 140.20) and petit larceny (Penal [672]*672Law § 155.25) and sentencing him, as a second felony offender, to an indeterminate term of imprisonment of from 2 to 4 years on the burglary count and a determinate term of one year on the petit larceny count, to run concurrently, is unanimously affirmed.

The evidence was legally sufficient to warrant denial of defendant’s motion, pursuant to CPL 290.10 (1), for a trial order of dismissal. In reviewing the legal sufficiency of the People’s evidence, all questions as to the quality or weight of the evidence must be deferred, the inquiry being whether the competent evidence, if accepted as true, establishes every element of the offense charged (People v Sabella, 35 NY2d 158, 167). Contrary to defendant’s arguments, evidence that defendant was found in an area of the basement to which access had been gained by breaking locks and cutting through the wire-mesh doors, with property belonging to another, provided sufficient evidence of intent and unlawful entry. (People v Barnes, 50 NY2d 375, 381.) Further, on review of the entire record, we find that defendant’s conviction accorded with the weight of the evidence.

We have not considered evidence presented on this appeal for the first time by defendant pro se, since it was not before the court below and conclude, in any event, that it is insufficient in both form and substance to disturb the judgment appealed from.

Concur — Murphy, P. J., Kupferman, Rosenberger, Kassal and Ellerin, JJ.

People v. Carrion, 165 A.D.2d 671, 564 N.Y.S.2d 10, 1990 N.Y. App. Div. LEXIS 11025 (N.Y. Ct. App. 1990).

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