People v. Diaz

81 A.D.2d 891, 439 N.Y.S.2d 49, 1981 N.Y. App. Div. LEXIS 11600

Opinion

— Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered October 9, 1979, convicting him of burglary in the third degree and grand larceny in the second degree, after a nonjury trial, and sentencing him as a predicate felon to concurrent terms of imprisonment of two to four years. Judgment affirmed. In his brief, defendant’s assigned appellate counsel alleges (and the People agree) that there are no meritorious grounds which could be raised on this appeal. We have reviewed the entire record and agree that an affirmance is warranted. In this nonjury trial, defendant took the stand and admitted, after proper warnings were conveyed to defendant regarding his constitutional right to remain silent, that he entered the complainant’s apartment unlawfully and took several valuables therefrom, before being apprehended by the police upon leaving the apartment. This testimony, coupled with the other evidence adduced by the People, clearly proved beyond a reasonable doubt that defendant was guilty of the crimes of burglary in the third degree and grand larceny in the second degree, both class D felonies (see Penal Law, §§ 140.20, 155.35). These were the only two crimes that defendant was thereafter found guilty of by the trial court. Under these circumstances, and in view of the fact that defendant received the most beneficial sentence that could be afforded to him as a predicate felon (see Penal Law, § 70.06, subd 3, par [d]; subd 4), the judgment must be affirmed. Appellant’s counsel’s application for leave to withdraw is granted (see Anders v California, 386 US 738; People v Pearson, 62 AD2d 1043; People v Foster, 58 AD2d 814; cf. People v Gonzalez, 47 NY2d 606). Lazer, J.P., Margett, O’Connor and Thompson, JJ., concur.