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

365
KA 14-00499
PRESENT: CENTRA, J.P., CARNI, DEJOSEPH, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JEREMY C. MAIER, DEFENDANT-APPELLANT.


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

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (TIMOTHY
J. GARVIN OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Sheila A.
DiTullio, J.), rendered May 13, 2013. The judgment convicted
defendant, upon a jury verdict, of assault in the third degree,
burglary in the first degree and criminal trespass in the second
degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of assault in the third degree (Penal Law § 120.00
[1]), burglary in the first degree (§ 140.30 [2]), and criminal
trespass in the second degree (§ 140.15 [1]). Defendant failed to
preserve for our review his contention that the evidence is legally
insufficient to support the conviction with respect to burglary in the
first degree and assault in the third degree inasmuch as defendant
failed to renew his motion for a trial order of dismissal after
presenting evidence (see People v Hines, 97 NY2d 56, 61, rearg denied
97 NY2d 678). In any event, we conclude that defendant’s contention
lacks merit (see generally People v Bleakley, 69 NY2d 490, 495).

     In particular, defendant contends that the evidence with respect
to the burglary conviction is legally insufficient because the People
did not establish that he entered the victim’s dwelling with intent to
commit a crime therein. “ ‘In order to secure a conviction for
burglary, the People need only allege and prove a knowing and unlawful
entry coupled with an intent to commit a crime therein. There is no
requirement that the People allege or establish what particular crime
was intended’ ” (People v Lewis, 5 NY3d 546, 552; see People v James,
114 AD3d 1202, 1204, lv denied 22 NY3d 1199). Additionally, “[a]
defendant’s intent to commit a crime ‘may be inferred from the
circumstances of the entry’ ” (People v Sterina, 108 AD3d 1088, 1090),
                                 -2-                           365
                                                         KA 14-00499

as well as “ ‘from defendant’s actions and assertions when
confronted’ ” (People v Jamieson, 88 AD3d 1298, 1299). Here, contrary
to defendant’s contention, the People established that defendant
intended to commit at least one of three crimes when he entered the
victim’s residence—i.e., assault in the first degree (Penal Law
§ 120.10), assault in the third degree (§ 120.00), or menacing in the
third degree (§ 120.15)—as demonstrated by the facts that defendant
was armed with a knife when he entered the residence through a window,
threatened to eject the victim from the residence, and immediately
lunged at the victim from the windowsill, initiating a fight in which
defendant punched the victim and tore out a handful of the victim’s
hair.

     Viewing the evidence in light of the elements of burglary in the
first degree as charged to the jury (see People v Danielson, 9 NY3d
342, 349), we conclude that the verdict is not against the weight of
the evidence (see generally Bleakley, 69 NY2d at 495). Moreover,
inasmuch as “ ‘the evidence is legally sufficient to support
defendant’s conviction . . . , it cannot be said that defense
counsel’s failure to renew the motion for a trial order of dismissal
constitutes ineffective assistance of counsel’ ” (People v Kaminski,
109 AD3d 1186, 1186-1187, lv denied 22 NY3d 1088; see generally People
v Caban, 5 NY3d 143, 152). Defendant’s sentence is not unduly harsh
or severe. We have reviewed defendant’s remaining contentions and
conclude that they lack merit.




Entered:   June 10, 2016                        Frances E. Cafarell
                                                Clerk of the Court
