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

1084
KA 10-02499
PRESENT: SMITH, J.P., CENTRA, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANACIN L. HYMES, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BRIDGET L. FIELD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Joan S.
Kohout, A.J.), rendered October 25, 2010. The judgment convicted
defendant, after a nonjury trial, of burglary in the third degree.

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

     Memorandum: Defendant appeals from a judgment convicting him,
following a nonjury trial, of burglary in the third degree (Penal Law
§ 140.20). Supreme Court properly refused to suppress defendant’s
statement made to a police officer outside the building where a
burglary in progress had been reported. Although defendant was then
in custody, the officer’s pre-Miranda question was a permissible
threshold crime scene inquiry that did not constitute custodial
interrogation (see People v Burnett, 228 AD2d 788, 790; People v
Mallory, 175 AD2d 623, 623-624, lv denied 78 NY2d 1013). When the
officer asked defendant what he was doing, “it was quite possible that
defendant was not the burglar, [and thus] the question [was] designed
to clarify the nature of the situation confronted, rather than to
coerce statements” (People v Nesby, 161 AD2d 246, 247, lv denied 76
NY2d 793).

     The evidence, viewed in the light most favorable to the People
(see People v Contes, 60 NY2d 620, 621), is legally sufficient to
establish that defendant possessed the requisite intent to commit a
crime when he unlawfully entered the building (see generally People v
Bleakley, 69 NY2d 490, 495). His “criminal intent can be inferred
from his unexplained, unauthorized presence on the premises, from his
actions while on the premises, and from his actions and assertions
when confronted by the police” (People v Gates, 170 AD2d 971, 971-972,
lv denied 78 NY2d 922; see People v Ostrander, 46 AD3d 1217, 1218).
Viewing the evidence in light of the elements of the crime in this
                                 -2-                          1084
                                                         KA 10-02499

nonjury trial (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 Bleakley, 69 NY2d at 495).

      Contrary to defendant’s further contention, we conclude that
County Court properly curtailed the cross-examination of a prosecution
witness with respect to alleged omissions of fact in her statement to
a police officer on the night of the burglary. The witness testified
that she did not omit any facts from her statement, but the officer
did not write everything down. “[T]hus[,] there was no basis for
impeachment of her trial testimony based on that statement” (People v
Hamm, 96 AD3d 1482, 1483, affd 21 NY3d 708; see People v Bornholdt, 33
NY2d 75, 88; People v Ogborn, 57 AD3d 1430, 1431, lv denied 12 NY3d
786).

     Finally, the court properly denied as untimely defendant’s
request that two persons who identified him on the night of the
burglary be treated as missing witnesses by the court (see People v
Tomlin, 130 AD3d 1455, 1456; People v Williams, 94 AD3d 1555, 1556).




Entered:   October 9, 2015                      Frances E. Cafarell
                                                Clerk of the Court
