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

298
KA 13-02151
PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CODY LITTLE, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered September 11, 2013. The judgment
convicted defendant, upon a jury verdict, of burglary in the second
degree, reckless endangerment in the second degree and resisting
arrest.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by directing that the definite
sentence imposed on count two of the indictment shall run concurrently
with the determinate sentence imposed on count one of the indictment
and as modified the judgment is affirmed.

     Memorandum: On appeal from a judgment convicting him following a
jury trial of burglary in the second degree (Penal Law § 140.25 [2]),
reckless endangerment in the second degree (§ 120.20), and resisting
arrest (§ 205.30), defendant contends with respect to his burglary
conviction that the evidence is legally insufficient to establish that
he knowingly entered the victim’s dwelling unlawfully. We reject that
contention. Defendant had been evicted from the victim’s residence
months before the date of the alleged burglary, and the victim
testified that defendant did not have permission to enter his
residence on that day. Although the victim testified that defendant
was welcome to come to the residence even after being evicted, it does
not follow from that testimony that defendant had permission to enter
the dwelling without the owner’s knowledge or invitation. Moreover,
defendant’s actions in prying open a kitchen window to enter the
residence and subsequently crawling through the residence to avoid
motion sensors connected to the alarm system establish that he was not
licensed or privileged to enter the residence when the victim was not
there (see People v Morrice, 78 AD3d 1534, 1535, lv denied 16 NY3d
834; see generally People v Graves, 76 NY2d 16, 20). Viewing the
evidence in light of the elements of the crime of burglary as charged
                                 -2-                           298
                                                         KA 13-02151

to the jury (see People v Danielson, 9 NY3d 342, 349), we also
conclude that the verdict with respect to that crime is not against
the weight of the evidence (see generally People v Bleakley, 69 NY2d
490, 495). Resolution of credibility issues is for the jury, and the
jury was entitled to disregard the minor inconsistencies in the
victim’s testimony (see People v Hargett, 11 AD3d 812, 814, lv denied
4 NY3d 744).

     We reject defendant’s further contention that the video of
defendant captured by the victim’s surveillance camera was improperly
admitted in evidence at trial. The testimony of the victim and the
police detective who viewed the video and was present while a copy was
made by a technician hired by the victim established a proper
foundation for admission of the video (see People v Costello, 128 AD3d
848, 848, lv denied 26 NY3d 927, reconsideration denied 26 NY3d 1007).
Supreme Court also properly denied defendant’s untimely request for a
missing witness charge with respect to the technician because the
technician’s testimony would have been merely cumulative (see People v
Muscarella, 132 AD3d 1288, 1289-1290, lv denied 26 NY3d 1147).

     Defendant further contends that he was denied effective
assistance of counsel because the victim was paying defendant’s legal
fees, and defense counsel thus had a conflict of interest. After
being alerted by the court to that potential conflict of interest and
being given an opportunity to engage separate counsel, however,
defendant consented to continued representation by counsel, thereby
waiving any claim of possible prejudice resulting from the potential
conflict (see generally People v Gomberg, 38 NY2d 307, 315-316). In
any event, in order to prevail on a claim of ineffective assistance,
defendant was required to show “that the conduct of his defense was in
fact affected by the operation of the conflict of interest, or that
the conflict operated on the representation” (People v Weeks, 15 AD3d
845, 847, lv denied 4 NY3d 892 [internal quotation marks omitted]),
and he failed to make that showing here. We reject defendant’s
further claims of ineffective assistance, and we conclude that the
record as a whole establishes that defense counsel provided meaningful
representation (see generally People v Baldi, 54 NY2d 137, 147).

     We reject defendant’s contention that his sentence is unduly
harsh and severe. However, inasmuch as we cannot allow an illegal
sentence to stand (see e.g. People v Abuhamra, 107 AD3d 1630, 1631, lv
denied 22 NY3d 1038), we modify the judgment by directing that the
definite sentence imposed on the reckless endangerment misdemeanor
count shall run concurrently with the determinate sentence imposed on
the felony burglary count (see Penal Law § 70.35; People v Leabo, 84
NY2d 952, 953; People v Shay, 130 AD3d 1499, 1500).

     We have reviewed defendant’s remaining contentions and conclude
that none warrants reversal or further modification of the judgment.


Entered:   May 6, 2016                          Frances E. Cafarell
                                                Clerk of the Court
