People v. Davis

233 A.D.2d 185, 649 N.Y.S.2d 792, 1996 N.Y. App. Div. LEXIS 11689

Opinion

Judgment, Supreme Court, New York County (Juanita Bing Newton, J., on pretrial motion; Patricia Williams, J., at nonjury trial), rendered July 26, 1994, convicting defendant of burglary in the second degree, possession of burglar’s tools, criminal mischief in the fourth degree, and petit larceny, and sentencing him, as a mandatory persistent violent felony offender, to concurrent prison terms of 8 years to life on the burglary conviction and one year on each of the additional convictions, unanimously affirmed.

The record supports the trial court’s finding that the police had probable cause to arrest defendant (People v De Bour, 40 NY2d 210), based on their observation of defendant scaling a fence enclosing premises which were the subject of a report of a burglary in progress, followed by defendant’s immediate flight.

The People presented overwhelming evidence of defendant’s guilt of the crimes charged, including the charge of possession of burglar’s tools (see, People v Borrero, 26 NY2d 430).

The trial court’s Sandoval ruling was an appropriate exercise of discretion (see, People v Reid, 190 AD2d 575, lv denied 81 NY2d 1078), and the record indicates that defendant’s waiver of a jury trial was knowing, intelligent, and voluntary.

Defendant’s failure to provide any record controverting the motion court’s findings of excludable adjournments (see, CPL 30.30 [4]) with respect to the periods from June 30, 1993 to July 19, 1993, from August 4, 1993 to September 22, 1993, and from January 27, 1994 to February 23, 1994 precludes appellate review of defendant’s claim of error (People v Kramer, 181 AD2d 449, 449-450, lv denied 79 NY2d 949).

Defendant’s remaining contentions are without merit. Concur—Milonas, J. P., Kupferman, Ross, Williams and Tom, JJ.