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People v. Wells

270 A.D.2d 849 Court N.Y. App. Div. Decision date 2000-03-29 English

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p. 849
The People of the State of New York, Respondent, v David E. Wells, Appellant.
[705 NYS2d 917]

—Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the first degree (Penal Law § 140.30 [2]). There is no merit to the contention of defendant that, because he allegedly entered the dwelling unlawfully with intent to commit an assault therein,

p. 850
the assault committed by him inside the dwelling cannot be used to aggravate the crime from second degree burglary to first degree burglary. Under the statute, the aggravating element is established upon proof of defendant’s causation of injury to a non-participant, regardless of defendant’s state of mind at the time of entry {see, Penal Law § 140.30 [2]). Defendant’s reliance on People v Brown ( 112 AD2d 13 , 14, affd 67 NY2d 555 , 560-561, cert denied 479 US 1093 ) is misplaced; that case prohibits the use or display of a firearm as the predicate for criminal display of a firearm in the first degree.

Contrary to defendant’s contention, the verdict is not against the weight of the evidence on the issue whether defendant had the essential criminal intent at the time of the break-in (see, People v Bleakley, 69 NY2d 490 , 495). A finder of fact could infer from the circumstances of the entry and from defendant’s assaultive and larcenous acts, which occurred within minutes of the break-in, that defendant possessed the requisite criminal intent at the time of the break-in (see, People v Barnes, 50 NY2d 375 , 381; People v Mackey, 49 NY2d 274 , 280).

We have considered defendant’s remaining contention and conclude that it is without merit. (Appeal from Judgment of Niagara County Court, Fricano, J. — Burglary, 1st Degree.) Present — Pigott, Jr., P. J., Pine, Wisner and Scudder, JJ.

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