                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: October 30, 2014                     104845
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                       MEMORANDUM AND ORDER

DANIEL P. SABINES,
                    Appellant.
________________________________


Calendar Date:   September 8, 2014

Before:   McCarthy, J.P., Rose, Egan Jr., Devine and Clark, JJ.

                               __________


     Linda B. Johnson, West Sand Lake, for appellant.

      Joseph A. McBride, District Attorney, Norwich (Michael J.
Genute of counsel), for respondent.

                               __________


McCarthy, J.P.

      Appeal from a judgment of the County Court of Chenango
County (Sullivan, J.), rendered December 16, 2011, upon a verdict
convicting defendant of the crime of burglary in the second
degree.

      A homeowner heard a hall closet door opening and the sounds
of rummaging in a bedroom on the second floor of his house. When
he discovered defendant on that floor, defendant fled. A jury
convicted defendant of burglary in the second degree. County
Court sentenced him, as a second felony offender, to nine years
in prison followed by five years of postrelease supervision.
Defendant appeals.
                              -2-                104845

      The verdict was not against the weight of the evidence. A
person is guilty of burglary in the second degree if he or she
"knowingly entered a dwelling with intent to commit a crime
therein" (People v Ostrander, 46 AD3d 1217, 1218 [2007]; see
Penal Law § 140.25 [2]). "[I]ntent may be inferred from the
circumstances of the intruder's unlawful entry, unexplained
presence on the premises, and actions and statements when
confronted by police or the property owner" (People v Ostrander,
46 AD3d at 1218; accord People v Pierce, 106 AD3d 1198, 1199
[2013]). The homeowner testified that he heard someone on the
second floor, he observed that boxes and hangers in a closet in
the bedroom had been moved, and he encountered defendant on the
second floor, without permission to be in the house. When he
asked defendant what he was doing, defendant responded "nothing,"
then ran out of the house. Text messages between defendant and
his codefendant can be interpreted as indicating that they
intended to rob houses for money on the day in question (see
People v Pierce, 106 AD3d at 1200). Defendant's statement to
police indicates that he entered the house through the back door,
spent three or four minutes going through the rooms on the first
floor, then went upstairs. In his statement, he admitted that
his intent in going into the house was to get money to support
his drug addiction. In both his statement and testimony, he
acknowledged that he fled when confronted by the homeowner,
discarded his red hat and red shirt in a creek, and was wearing a
black shirt when found by police. His flight and purposely
changing his clothing to avoid detection can be considered as
evidence of consciousness of guilt (see People v Bell, 108 AD3d
795, 797 [2013], lv denied 22 NY3d 995 [2013]). Defendant
testified that he knocked on the back door while attempting to
obtain signatures on a political petition, thought he heard
someone say that he could come in, was looking for that person
inside the house to get a signature, and denied that he intended
to take any money or property when he entered the house.
Deferring to the jury's credibility findings, which clearly did
not credit defendant's trial testimony concerning his intent, the
weight of the evidence supports the verdict (see People v
Ostrander, 46 AD3d at 1218; People v Haight, 19 AD3d 714, 716
[2005], lv denied 5 NY3d 806 [2005]).
                              -3-                104845

      County Court did not err in denying defendant's motion to
suppress the homeowner's showup identification of defendant.
Defendant was not handcuffed when the homeowner saw him, but was
sitting or leaning on the bumper of a police car next to a
uniformed officer and another police officer who was not in
uniform. The homeowner immediately identified defendant and
noted that he had changed his clothing. This procedure was not
unduly suggestive (see People v Harris, 64 AD3d 883, 884 [2009],
lv denied 13 NY3d 836 [2009]). Although witnesses at the hearing
differed as to whether the identification occurred within 10
minutes or up to 30 minutes after defendant fled the house, there
is no bright line rule to determine the timeliness of a showup
(see People v Brisco, 99 NY2d 596, 597 n [2003]). The showup
here was reasonable considering that it "took place at the scene
of the crime, within an hour of the commission of the crime, and
in the context of a continuous, ongoing investigation" (id. at
597; see People v Tillman, 57 AD3d 1021, 1023 [2008]). Thus,
defendant was not entitled to suppression of the identification.

      County Court properly denied defendant's motion to suppress
his oral and written statements. The statements were preceded by
a knowing and voluntary waiver of his Miranda rights. The
investigator's comments indicating that defendant might be
permitted to participate in drug court if he confessed, and that
it would benefit him to talk, did not constitute fundamentally
unfair or deceptive practices that render defendant's statements
involuntary (see People v Wolfe, 103 AD3d 1031, 1035 [2013], lv
denied 21 NY3d 1021 [2013]). Voluntariness, including as related
to claims of impairment by a physical condition or medication,
must be determined from the totality of the circumstances (see
People v Balram, 47 AD3d 1014, 1014 [2008], lv denied 10 NY3d 859
[2008]; People v Hughes, 280 AD2d 694, 695 [2001], lv denied 96
NY2d 801 [2001]). The statements were not rendered involuntary
just because defendant told the investigator that he had taken
prescription drugs that day, considering that hearing testimony
and the videotaped interview established that defendant was lucid
and coherent and even pointed out an error in the written
statement (see People v Balram, 47 AD3d at 1015). Thus,
suppression was not warranted.
                              -4-                  104845

      Defendant did not preserve his current challenge to the
jury charge, as he did not object to the charge as given or
request a different charge on circumstantial evidence (see People
v Davis, 105 AD3d 1095, 1097 [2013], lv denied 21 NY3d 1003
[2013]). To the extent that defendant argues that his counsel
was ineffective for failing to object or request a different
charge, his argument is unavailing. The charge was proper
because the People relied on both direct and circumstantial
evidence (see People v Barnes, 50 NY2d 375, 379-380 [1980];
People v Pope, 96 AD3d 1231, 1235 [2012], lv denied 20 NY3d 1064
[2013]). Similarly, while counsel did not object during the
prosecutor's opening statement or summation or to certain
questions that the People asked defendant on cross-examination,
rendering such issues unpreserved, counsel was not ineffective
because most of those objections would not have been successful.
Additionally, counsel could have strategically chosen not to
object to certain of the other questions or statements. We
cannot find counsel ineffective for failing to file a speedy
trial motion, inasmuch as the record does not contain information
indicating that such a motion would have been successful.

      We have considered defendant's remaining contentions and
find them unavailing.

     Rose, Egan Jr., Devine and Clark, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
