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

890
KA 12-02256
PRESENT: SMITH, J.P., FAHEY, LINDLEY, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TEDDERICK A. GILMER, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered October 23, 2012. The judgment
convicted defendant, upon a nonjury verdict, of attempted 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 nonjury verdict of attempted burglary in the second degree
(Penal Law §§ 110.00, 140.25 [2]). Defendant failed to preserve for
our review his challenge to the legal sufficiency of the evidence
inasmuch as his motion for a trial order of dismissal at the close of
his proof was not specifically directed at the alleged error raised on
appeal (see People v Beard, 100 AD3d 1508, 1509; People v Neary, 56
AD3d 1224, 1224, lv denied 11 NY3d 928). In any event, defendant’s
challenge is without merit. At trial, the victim testified that
someone broke in the front door to her home, broke a small plexiglass
window adjacent to the front door, and stole various items from her
home. In addition, the People presented evidence that defendant’s
fingerprints were found on an unopened window and on a piece of
plexiglass from a broken window adjacent to the front door. The
People also presented evidence that defendant told the police that he
went to the victim’s home for the purpose of breaking in and that he
unsuccessfully tried to open a window to the home, but that he never
entered the home. Contrary to defendant’s contention, the evidence is
legally sufficient to establish that he “must have engaged in conduct
that came dangerously near commission of the completed crime” of
burglary in the second degree (People v Naradzay, 11 NY3d 460, 466,
rearg dismissed 17 NY3d 840 [internal quotation marks omitted]; see
People v Van Etten, 162 AD2d 976, 976-977, lv denied 76 NY2d 1025).
Contrary to defendant’s further contention, viewing the evidence in
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                                                         KA 12-02256

light of the elements of the crime in this bench trial (see People v
Danielson, 9 NY3d 342, 349), we conclude that the verdict is not
against the weight of the evidence (see People v Gaines, 26 AD3d 742,
742-743, lv denied 6 NY3d 847; see generally People v Bleakley, 69
NY2d 490, 495).

     Defendant failed to preserve for our review his contention that
he did not waive his Miranda rights before making a statement to the
police (see generally People v Rumrill, 40 AD3d 1273, 1274, lv denied
9 NY3d 926; People v Hightower, 39 AD3d 1247, 1248, lv denied 9 NY3d
845). In any event, defendant’s contention lacks merit. “Where, as
here, a defendant has been advised of his Miranda rights and within
minutes thereafter willingly answers questions during interrogation,
‘no other indication prior to the commencement of interrogation is
necessary to support a conclusion that the defendant implicitly waived
those rights’ ” (People v Goncalves, 288 AD2d 883, 884, lv denied 97
NY2d 729, quoting People v Sirno, 76 NY2d 967, 968; see People v Hale,
52 AD3d 1177, 1178).

     Defendant contends that he was denied his right to counsel when
the police questioned him concerning the instant crime while he was in
custody and represented by counsel in another case. We reject that
contention. According to the testimony of a police detective at the
Huntley hearing, defendant had been sentenced on an unrelated case
before the detective questioned him regarding this crime, and
“[Supreme] Court therefore properly determined that the police were
not precluded from questioning him regarding the instant crime[]”
(People v Koonce, 111 AD3d 1277, 1278; see People v Robles, 72 NY2d
689, 695).

     We reject defendant’s contention that he was denied effective
assistance of counsel during the pretrial plea negotiations on the
ground that defense counsel allegedly failed to inform him of the
prosecution’s plea offer. Here, the record establishes that defense
counsel informed defendant of the plea offer in writing and during a
meeting shortly before defendant provided testimony to the grand jury,
and thus defendant is unable to meet his burden of establishing
“ ‘that a plea offer was made, that defense counsel failed to inform
him of that offer, and that he would have been willing to accept the
offer’ ” (People v Fernandez, 5 NY3d 813, 814; see People v Howard, 12
AD3d 1127, 1128). Contrary to defendant’s further contention,
reversal is not warranted on the ground that defense counsel took a
position adverse to defendant in contradicting defendant’s assertion
that he failed to inform defendant of the plea offer. The court cured
any prejudice to defendant by assigning new counsel for defendant and
conducting a hearing on the issue whether defendant’s initial attorney
failed to inform him of the plea offer (see People v Stephens, 291
AD2d 841, 841-842; People v Santana, 156 AD2d 736, 737; see generally
People v Lewis, 2 NY3d 224, 228-229).

     Finally, we conclude that the court did not abuse its discretion
in directing that defendant’s sentence was to run consecutively to,
rather than concurrently with, a sentence imposed for an unrelated
conviction (see Penal Law § 70.25 [2-b]; see generally People v Elder,
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                                                         KA 12-02256

71 AD3d 1483, 1484, lv denied 16 NY3d 743, reconsideration denied 16
NY3d 858).




Entered:   October 3, 2014                     Frances E. Cafarell
                                               Clerk of the Court
