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

667
KA 11-01412
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CARLA C. STERINA, DEFENDANT-APPELLANT.


SCHIANO LAW OFFICE, P.C., ROCHESTER (MICHAEL P. SCHIANO OF COUNSEL),
FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered March 15, 2011. The judgment
convicted defendant, upon a jury verdict, of burglary in the first
degree (two counts) and assault in the second degree (two counts).

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

     Memorandum: Defendant appeals from a judgment convicting her
upon a jury verdict of two counts each of burglary in the first degree
(Penal Law § 140.30 [2], [3]) and assault in the second degree (§
120.05 [2], [6]). We reject defendant’s contention that Supreme Court
erred in refusing to charge criminal trespass in the second degree (§
140.15 [1]) as a lesser included offense of burglary in the first
degree (§ 140.30 [2], [3]). Contrary to defendant’s contention, there
is no reasonable view of the evidence to support the theory that she
unlawfully entered the victim’s dwelling, but did not intend to commit
a crime therein (see § 140.30; People v Santos, 101 AD3d 427, 428, lv
denied 20 NY3d 1103; People v Clarke, 233 AD2d 831, 832, lv denied 89
NY2d 1010, reconsideration denied 90 NY2d 856; see generally People v
Glover, 57 NY2d 61, 63-64). The evidence established that defendant
and her accomplices broke down the door, entered the house armed with
one or more baseball bats, and immediately attacked the victim’s son
(see People v Massey, 45 AD3d 1044, 1046, lv denied 9 NY3d 1036). To
the extent that defendant contends that she was entitled to the lesser
included charge because there is a reasonable view of the evidence
that she did not enter the victim’s house, that assertion is
unpreserved (see People v McCoy, 91 AD3d 537, 537-538). In any event,
that contention lacks merit inasmuch as both criminal trespass in the
second degree and burglary in the first degree require entry into a
dwelling (see §§ 140.15 [1]; 140.30).
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                                                         KA 11-01412

     As defendant correctly concedes, her challenge to the legal
sufficiency of the evidence with respect to the crime of burglary in
the first degree is unpreserved for our review inasmuch as she failed
to renew her motion for a trial order of dismissal after presenting
evidence (see People v Lugo, 87 AD3d 1403, 1404, lv denied 18 NY3d
860). In any event, that contention is without merit. Contrary to
defendant’s contention, the People established that she entered a
dwelling, i.e., the victim’s home, which is a necessary element of
burglary in the first degree (see Penal Law § 140.30; People v Prince,
51 AD3d 1052, 1053-1054, lv denied 10 NY3d 938). The entry element of
burglary is satisfied “when a person intrudes within a [dwelling], no
matter how slightly, with any part of his or her body” (People v King,
61 NY2d 550, 555; see People v Cleveland, 281 AD2d 815, 816, lv denied
96 NY2d 900). Here, several witnesses unequivocally testified that
defendant and another assailant entered the foyer of the victim’s home
after breaking down the door, and a recording of the contemporaneous
911 call made by the victim’s sister indicates that she told the 911
operator that the assailants were “inside the house” (see generally
Prince, 51 AD3d at 1054; People v Rivera, 301 AD2d 787, 788, lv denied
99 NY2d 631). Indeed, the victim specifically identified the location
where she observed defendant and the other assailant striking her son,
which was several feet inside the house. With respect to the intent
element, it is well settled that, “in order to be guilty of burglary
for unlawful entry, a defendant must have had the intent to commit a
crime at the time of entry . . . [C]ontemporaneous intent is required”
(People v Gaines, 74 NY2d 358, 363). A defendant’s intent to commit a
crime “may be inferred from the circumstances of the entry” (id. at
362 n 1; see People v Mitchell, 254 AD2d 830, 831, lv denied 92 NY2d
984; Clarke, 233 AD2d at 832). Here, we conclude that the violent
nature of defendant’s entry into the home, including breaking down the
door, forcing her way into the house, and immediately attacking the
occupants, sufficiently establishes her intent to commit a crime at
the time of entry (see Massey, 45 AD3d at 1046; Clarke, 233 AD2d at
832). Contrary to the further contention of defendant, we conclude
that, viewing the evidence in light of the elements of the crimes as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), the
verdict is not against the weight of the evidence on the issue of
identification (see People v Dark, 104 AD3d 1158, 1158; People v Carr,
99 AD3d 1173, 1174, lv denied 20 NY3d 1010; People v Mobley, 49 AD3d
1343, 1345, lv denied 11 NY3d 791; see generally People v Bleakey, 69
NY2d 490, 495). Although a different verdict would not have been
unreasonable in light of, inter alia, defendant’s testimony that she
did not participate in the attack, “[t]he jury’s resolution of
credibility and identification issues is entitled to great weight”
(People v Kelley, 46 AD3d 1329, 1331, lv denied 10 NY3d 813 [internal
quotation marks omitted]), and we cannot conclude on this record that
the jury failed to give the evidence the weight it should be accorded
(see Mobley, 49 AD3d at 1345; Kelley, 46 AD3d at 1331). Notably, four
witnesses, including the victim, testified that defendant was one of
the assailants.

     Defendant failed to preserve for our review her contention that
she was denied a fair trial by prosecutorial misconduct on summation
                                 -3-                              667
                                                            KA 11-01412

(see CPL 470.05 [2]; People v Wiley, 104 AD3d 1314, 1314), and we
decline to exercise our power to review that contention as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]).
Contrary to the further contention of defendant, we conclude that the
court did not abuse its discretion in denying without a hearing her
posttrial motion to set aside the verdict pursuant to CPL 330.30 (3)
inasmuch as “defendant failed to show that the allegedly new evidence
could not have been discovered earlier in the exercise of reasonable
diligence” (People v Robertson, 302 AD2d 956, 958, lv denied 100 NY2d
542; see People v Archie, 78 AD3d 1560, 1561, lv denied 16 NY3d 856).
The purportedly new evidence consisted of affidavits from defendant
and two other witnesses who alleged that defendant’s mother paid two
other women to attack the victims. Defendant, however, admitted that
her mother informed her of those alleged facts over a year prior to
trial.

     Finally, the sentence is not unduly harsh or severe.




Entered:   July 5, 2013                         Frances E. Cafarell
                                                Clerk of the Court
