People v. Cherry

Appellate Division of the Supreme Court of New York

People v. Cherry

282 A.D.2d 333, 725 N.Y.S.2d 304, 2001 N.Y. App. Div. LEXIS 3884

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 19, 2001

StatusPublished

Cited by2 cases

This text of 282 A.D.2d 333 (People v. Cherry) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Cherry, 282 A.D.2d 333, 725 N.Y.S.2d 304, 2001 N.Y. App. Div. LEXIS 3884 (N.Y. Ct. App. 2001).

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Opinion

—Judgment, Supreme Court, New York County (Michael Corriere, J.), rendered August 13, 1998, convicting defendant, after a jury trial, of attempted burglary in the second degree, criminal possession of stolen property in the fourth and fifth degrees, and possession of burglar’s tools, and sentencing him, as a persistent violent felony offender, to concurrent terms of 12 years to life, 2 to 4 years, 1 year and 1 year, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. The evidence established that defendant was observed on the roof of a building after he had taken very peculiar measures to enter the adjacent building and squeezed through a hole in a fence on the roof which separated both buildings. Defendant was observed walking back and forth across the rear of the building roof, constantly looking over the edge of the building, and twice descending a few of the steps of the fire escape. There was no evidence that defendant had any prior relationship with the occupants of the building that could have explained his behavior. Moreover, de[334]*334fendant was in possession of a screwdriver, which is a common burglar’s tool. Under these circumstances, the jury properly concluded that defendant came dangerously close to entering the building, and that he had the intent to commit a crime therein (see, People v Van Etten, 162 AD2d 976, lv denied 76 NY2d 1025).

The procedure under which defendant was sentenced as a persistent felony offender was not unconstitutional (compare, Almendarez-Torres v United States, 523 US 224, with Apprendi v New Jersey, 530 US 466). Concur — Williams, J. P., Wallach, Lerner, Rubin and Friedman, JJ.

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—Judgment, Supreme Court, New York County (Michael Corriere, J.), rendered August 13, 1998, convicting defendant, after a jury trial, of attempted burglary in the second degree, criminal possession of stolen property in the fourth and fifth degrees, and possession of burglar’s tools, and sentencing him, as a persistent violent felony offender, to concurrent terms of 12 years to life, 2 to 4 years, 1 year and 1 year, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. The evidence established that defendant was observed on the roof of a building after he had taken very peculiar measures to enter the adjacent building and squeezed through a hole in a fence on the roof which separated both buildings. Defendant was observed walking back and forth across the rear of the building roof, constantly looking over the edge of the building, and twice descending a few of the steps of the fire escape. There was no evidence that defendant had any prior relationship with the occupants of the building that could have explained his behavior. Moreover, de[334]*334fendant was in possession of a screwdriver, which is a common burglar’s tool. Under these circumstances, the jury properly concluded that defendant came dangerously close to entering the building, and that he had the intent to commit a crime therein (see, People v Van Etten, 162 AD2d 976, lv denied 76 NY2d 1025).

The procedure under which defendant was sentenced as a persistent felony offender was not unconstitutional (compare, Almendarez-Torres v United States, 523 US 224, with Apprendi v New Jersey, 530 US 466). Concur — Williams, J. P., Wallach, Lerner, Rubin and Friedman, JJ.

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Bluebook (online)

282 A.D.2d 333, 725 N.Y.S.2d 304, 2001 N.Y. App. Div. LEXIS 3884, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-cherry-nyappdiv-2001.

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