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

1039
KA 09-02235
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, SCONIERS, AND GREEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                MEMORANDUM AND ORDER

WILLIAM JAMIESON, DEFENDANT-APPELLANT.


NELSON S. TORRE, BUFFALO, FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHELLE L.
CIANCIOSA OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered July 16, 2009. The judgment convicted
defendant, upon a nonjury verdict, of burglary in the second degree,
criminal mischief in the fourth degree and petit larceny (two counts).

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

     Memorandum: On appeal from a judgment convicting him upon a
nonjury verdict of, inter alia, burglary in the second degree (Penal
Law § 140.25 [2]), defendant contends that the evidence of his
unlawful entry into the victim’s home and intent to commit a crime at
the time of the entry is insufficient to support the burglary
conviction. Defendant’s contention is unpreserved for our review
inasmuch as he failed to move for a trial order of dismissal at the
close of the People’s case (see People v Gray, 86 NY2d 10, 19; People
v Brown, 67 AD3d 1369, lv denied 14 NY3d 886). In any event, that
contention is without merit. The evidence establishes “that defendant
gained entry to the victim’s home by means of deception, trickery or
misrepresentation,” and thus it is legally sufficient to establish the
unlawful entry (People v Mitchell, 254 AD2d 830, 831, lv denied 92
NY2d 984). The victim testified that defendant, who was wearing a
hard hat and a vest when he approached her home, informed the victim
that he was “from the cable company” and that he was there to “see if
[her] setup was okay.” In addition, “[d]efendant’s intent to commit a
crime [at the time of entry] may be inferred from the circumstances of
the entry, from defendant’s unexplained or unauthorized presence on
the premises and from defendant’s actions and assertions when
confronted” (id.). Here, defendant’s intent to commit a crime at the
time of entry may be inferred from evidence that, inter alia, he posed
as a cable company employee to gain entry to the victim’s home and
engaged in a physical altercation with her brother after that
individual confronted defendant concerning the property taken from the
                             -2-                 1039
                                            KA 09-02235

victim’s home.




Entered:   October 7, 2011         Patricia L. Morgan
                                   Clerk of the Court
