People v. Whitfield

Judgment unanimously affirmed. Memorandum: Viewing the proof in the light most favorable to the People (People v Malizia, 62 NY2d 755 , 757, cert denied 469 US 932 ), we conclude that the evidence was legally sufficient to support the jury’s determination that defendant was guilty of burglary in the third degree. Defendant’s intent to commit a crime within the building can be inferred from the circumstances of the entry (see, People v Mackey, 49 NY2d 274 , 280; People v Woodard, 148 AD2d 997 ;

The trial court correctly permitted the prosecutor to impeach Jesse Smallwood by the use of his prior written statement because Smallwood’s trial testimony upon a material issue of this case, namely, the intent to commit a crime within the building, tended "to disprove the position” of the People (CPL 60.35 [1]). Moreover, the trial court immediately gave limiting instructions to the jury that the prior contradictory statement was received only for the purpose of impeaching Smallwood’s credibility, not as evidence-in-chief (CPL 60.35 [2]).

Defendant’s challenge to the entire jury panel was not in writing and is not preserved for our review (CPL 270.10 [2]; see, People v Prim, 40 NY2d 946 , 947; People v Smith, 148 AD2d 929 ). In any event, defendant failed to meet his initial burden of establishing a prima facie case of the systematic exclusion of blacks from the jury panel (see, People v Guzman, 60 NY2d 403 , 409, cert denied 466 US 951 ).

Defendant failed to object and thus did not preserve for our review the issue of whether a portion of the trial court’s charge impermissibly shifted the People’s burden of proof (CPL 470.05 [2]; People v Thomas, 50 NY2d 467 ) and we decline to reach it in the interest of justice (CPL 470.15 [6]). (Appeal from judgment of Ontario County Court, Reed, J.— burglary, third degree.) Present — Denman, J. P., Boomer, Green, Lawton and Davis, JJ.