People v. Polanco

279 A.D.2d 307, 718 N.Y.S.2d 830, 2001 N.Y. App. Div. LEXIS 239

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 11, 2001
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Nicholas Figueroa, J.), rendered May 20, 1998, as amended June 3, 1998, convicting defendant, after a jury trial, of burglary in the second degree (two counts), criminal contempt in the second degree (two counts), and bail jumping in the second degree, and sentencing him, as a second felony offender, to concurrent terms of 5 years, 5 years, 1 year, 1 year, and 2 to 4 years, respectively, unanimously affirmed.

Since defendant made only a general motion for a trial order of dismissal, and since the colloquy at the pre-charge conference did not relate to the issue of legal sufficiency, defendant’s challenges to the sufficiency of the evidence of criminal intent regarding the two burglary incidents are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them. In the first incident, even assuming that the only crime intended was criminal contempt, the evidence established that defendant entered with intent to commit that crime by violating an order of protection. Although, at the time of his forcible entry, defendant was already in violation of the order, he clearly intended to violate it further, and more seriously than before. In the second incident, the circumstantial evidence established that defendant forcibly entered and ransacked the then-unoccupied apartment, and the jury could have reasonably concluded that defendant’s criminal intent was contemporaneous with his unlawful entry.

Defendant’s challenge to the court’s response to a jury note is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court responded meaningfully to the note. Concur — Tom, J. P., Ellerin, Wallach, Lerner and Buckley, JJ.