        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1471
KA 11-02162
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GERALD FREEMAN, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID PANEPINTO OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered September 29, 2011. The judgment convicted
defendant, upon a jury verdict, of burglary in the third degree,
possession of burglar’s tools and resisting arrest.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him following a
jury trial of, inter alia, burglary in the third degree (Penal Law §
140.20), defendant contends that the evidence is legally insufficient
to establish that he intended to commit a crime when he unlawfully
entered the vacant house he was charged with burglarizing.
Defendant’s contention lacks merit (see generally People v Bleakley,
69 NY2d 490, 495). The People were required to prove “only
defendant’s general intent to commit a crime in the [building] . . . ,
not his intent to commit a specific crime” (People v Lewis, 5 NY3d
546, 552). Moreover, the People were not required to prove that
defendant actually committed the intended crime (see People v Porter,
41 AD3d 1185, 1186, lv denied 9 NY3d 963). The jury was entitled to
infer defendant’s intent to commit a crime inside the building from
the evidence that he broke a window to gain entry (see generally
People v Barnes, 50 NY2d 375, 381; People v Grant, 162 AD2d 1021,
1022), as well as from the evidence of his simultaneous possession of
burglar tools (see People v Wright, 92 AD2d 722). The jury was also
entitled to infer defendant’s intent from his “actions and assertions
when confronted by the police” (People v Mitchell, 254 AD2d 830, 831,
lv denied 92 NY2d 984), which included fighting with the police and
threatening one of the arresting officers.

     Finally, in view of the fact that defendant has a criminal record
dating back to 1973, including three prior felony convictions, as well
                                 -2-                          1471
                                                         KA 11-02162

as the fact that he violently resisted arrest, we perceive no basis to
exercise our power to reduce the sentence as a matter of discretion in
the interest of justice (see CPL 470.15 [6] [b]).




Entered:   February 1, 2013                     Frances E. Cafarell
                                                Clerk of the Court
