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

1060
KA 13-00067
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANDREW RAJCZAK, JR., DEFENDANT-APPELLANT.


ROBERT M. PUSATERI, CONFLICT DEFENDER, LOCKPORT (EDWARD P. PERLMAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (DOREEN M. HOFFMANN
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Sara S.
Farkas, J.), rendered November 5, 2012. The judgment convicted
defendant, upon a jury verdict, of burglary in the second degree,
attempted petit larceny 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 burglary in the second degree (Penal Law §
140.25 [2]), attempted petit larceny (§§ 110.00, 155.25), and criminal
trespass in the second degree (§ 140.15). Viewing the evidence in
light of the elements of the crimes as charged to the jury (see People
v Danielson, 9 NY3d 342, 349), we reject defendant’s contention that
the verdict is against the weight of the evidence (see generally
People v Bleakley, 69 NY2d 490, 495). We note in particular that,
although it would not have been unreasonable for the jury to find that
defendant did not have the requisite intent to commit the crimes of
burglary in the second degree and attempted petit larceny, defendant’s
intent to commit those crimes may be inferred from “his ‘unexplained
presence on the premises, and [his] actions and statements when
confronted by [the] police [and] the property owner’ ” (People v
James, 114 AD3d 1202, 1205, lv denied 22 NY3d 1199). Here, we
conclude that “it cannot be said that the jury failed to give the
evidence the weight it should be accorded” (People v Martinez, 118
AD3d 1446, 1447).

     We reject defendant’s further contention that County Court erred
in permitting the People to ask a defense witness about defendant’s
prior arrest for attempted burglary. “ ‘A defense witness who has not
testified as a character witness on direct examination may not be
cross-examined about the defendant’s criminal record . . . However,
                                 -2-                          1060
                                                         KA 13-00067

once the defendant has introduced character evidence, the People may
question the defense witness about whether he or she has heard of the
defendant’s previous criminal acts, since such questions are relevant
to the ability of the character witness to accurately reflect the
defendant’s reputation in the community’ ” (People v Marzug, 280 AD2d
974, 975, lv denied 96 NY2d 904; see People v Kuss, 32 NY2d 436, 443,
rearg denied 33 NY2d 644, cert denied 415 US 913). Finally, the
sentence is not unduly harsh or severe.




Entered:   October 2, 2015                     Frances E. Cafarell
                                               Clerk of the Court
