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

820
KA 14-01107
PRESENT: PERADOTTO, J.P., CARNI, DEJOSEPH, NEMOYER, AND CURRAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WINSTON R. PENDARVIS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (NICHOLAS
T. TEXIDO OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Sheila A.
DiTullio, J.), rendered June 10, 2014. The judgment convicted
defendant, upon a jury verdict, of burglary 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]). We reject defendant’s contention that the evidence is
legally insufficient to support the conviction because the People did
not establish that he entered the victims’ house with intent to commit
a crime therein (see generally People v Bleakley, 69 NY2d 490, 495).
It is well established that “[a] defendant’s intent to commit a crime
may be inferred from the circumstances of the entry . . . , as well as
from defendant’s actions and assertions when confronted” (People v
Maier, 140 AD3d 1603, 1603-1604 [internal quotation marks omitted]).
Here, we conclude that there is legally sufficient evidence from which
a jury could infer defendant’s criminal intent based on those factors,
i.e., defendant was on the victims’ premises without any explanation,
broke a screen door, entered the victims’ house, and immediately fled,
albeit slowly and calmly, after one of the victims saw him in the
house (see People v Beaty, 89 AD3d 1414, 1416-1417, affd 22 NY3d 918;
see also People v Hymes, 132 AD3d 1411, 1411-1412, lv denied 26 NY3d
1146; People v Bergman, 70 AD3d 1494, 1494, lv denied 14 NY3d 885).
Viewing the evidence in light of the elements of the crime as charged
to the jury (see People v Danielson, 9 NY3d 342, 349), we further
conclude that the verdict is not against the weight of the evidence
(see generally Bleakley, 69 NY2d at 495).

     Contrary to defendant’s contention, the People articulated a
sufficient race-neutral explanation for using a peremptory challenge
                                 -2-                              820
                                                            KA 14-01107

to remove a prospective juror (see People v Barber, 156 AD2d 1022,
1023, lv denied 75 NY2d 866). Defendant failed to preserve for our
review his related contention that the prosecutor’s explanation for
striking a prospective juror in response to his Batson challenge was
pretextual (see People v Cooley, 48 AD3d 1091, 1092, lv denied 10 NY3d
861; People v Dandridge, 26 AD3d 779, 779-780, lv denied 9 NY3d 1032),
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]).

     Defendant contends that County Court improperly permitted the
male victim to give testimony with respect to a certain statement that
the female victim made to him at the time of the burglary. According
to defendant, that testimony constituted hearsay and improperly
bolstered the female victim’s testimony. Defendant’s bolstering
contention is not preserved for our review inasmuch as defendant did
not object to the testimony on that ground (see People v Capers, 94
AD3d 1475, 1476, lv denied 19 NY3d 971). In any event, inasmuch as
the disputed statement made by the female victim was an excited
utterance, it did not constitute hearsay or improper bolstering (see
People v Miller, 115 AD3d 1302, 1304, lv denied 23 NY3d 1040).
Defendant’s related contention that follow-up testimony given by the
male victim was hearsay is also not preserved for our review. In any
event, that contention lacks merit inasmuch as that testimony also
falls under the excited utterance exception to the hearsay rule (see
id. at 1303-1304; People v Cordero, 272 AD2d 924, 924-925, lv denied
95 NY2d 851).

     Although we agree with defendant that the police officers’
testimony concerning the victims’ identification of defendant
constituted improper bolstering, defendant failed to preserve that
contention for our review. In any event, the admission of that
testimony was harmless inasmuch as the evidence against defendant,
including the strong identification testimony of the victims, was
overwhelming, and there “ ‘is [no] significant probability’ ” that the
jury would have acquitted defendant but for that error (People v
Johnson, 57 NY2d 969, 970-972; see People v Hampton, 121 AD3d 1538,
1539, lv denied 24 NY3d 1084; People v Elliott, 294 AD2d 870, 870, lv
denied 98 NY2d 696).

     Contrary to defendant’s further contention, we conclude that the
evidence, the law, and the circumstances of this case, viewed in
totality and as of the time of the representation, establish that he
received meaningful representation (see generally People v Baldi, 54
NY2d 137, 147).

     Finally, the sentence is not unduly harsh or severe.




Entered:   October 7, 2016                      Frances E. Cafarell
                                                Clerk of the Court
