People v. Cohen

204 A.D.2d 159, 612 N.Y.S.2d 23, 1994 N.Y. App. Div. LEXIS 5350

Opinion

—Judgment, Supreme Court, New York County (Mary McGowan Davis, J.), rendered September 17, 1992, which convicted defendant, after a jury trial, of burglary in the second degree and possession of burglar’s tools and sentenced him, as a second felony offender, to concurrent terms of 3 to 6 years and 1 year, respectively, unanimously affirmed.

Viewing the evidence in the light most favorable to the People (People v Contes, 60 NY2d 620, 621), we find that it was legally sufficient to establish defendant’s guilt of burglary in the second degree beyond a reasonable doubt. Defendant was discovered in the basement of a residential apartment building attempting to pry the doorknob from a door which led to a room containing paint supplies and other equipment. Moreover, police recovered paint supplies from defendant’s pockets. Contrary to defendant’s claim, the fact that the rest of the building in which the basement was located was occupied by tenants residing there at night established that the basement was part of a "dwelling” within the meaning of Penal Law § 140.00 (2), (3) (see, e.g., People v Rohena, 186 AD2d 509, lv denied 81 NY2d 794; People v Green, 141 AD2d 760, lv denied 73 NY2d 786; People v Ivory, 99 AD2d 154, 156-157). Furthermore, the evidence that, inter alia, the front entrance to the building and the side entrance leading to the basement were locked was sufficient to establish that defendant’s entry was unlawful (see, People v Rodriguez, 159 AD2d 201, lv denied 76 NY2d 742). Concur—Murphy, P. J., Carro, Wallach, Asch and Tom, JJ.