PEOPLE v. WATSON (2007)

Defendant appeals from a judgment convicting him after a nonjury trial of burglary in the second degree (Penal Law § 140.25[2] ), criminal possession of stolen property in the fifth degree (§ 165.40), criminal mischief in the fourth degree (§ 145.00[1] ) and possession of burglar's tools (§ 140.35).   The conviction arises from defendant's unlawful entry into a residence.   The police apprehended defendant within minutes of the crime, and they recovered several items from defendant that he had stolen from the residence, including two screwdrivers.   We previously held this case, reserved decision and remitted the matter to Supreme Court for a reconstruction hearing because we were unable to determine on the record before us whether defendant signed the waiver of his right to a jury trial in open court, as required by N.Y. Constitution, article I, § 2 and CPL 320.10(2)(People v. Watson, 38 A.D.3d 1196, 834 N.Y.S.2d 905).   We conclude that the record of the reconstruction hearing supports the court's determination that the waiver was signed in open court (see generally People v. Terry, 225 A.D.2d 1058, 639 N.Y.S.2d 215, lv. denied 88 N.Y.2d 886, 645 N.Y.S.2d 461, 668 N.E.2d 432).

 We reject the further contention of defendant that his waiver of the right to a jury trial was not knowing, intelligent and voluntary. Although the court's colloquy was interrupted, it is evident from the record that the court emphasized to defendant that he was not obligated to proceed with the nonjury trial (see generally People v. Smith, 6 N.Y.3d 827, 828, 817 N.Y.S.2d 575, 850 N.E.2d 622, cert. denied 548 U.S. 905, 126 S.Ct. 2971, 165 L.Ed.2d 953).

 We agree with defendant, however, that the evidence is legally insufficient to establish that he evinced an intent to use the screwdrivers in the commission of a burglary or similar offense and thus that the court erred in denying his motion to dismiss the count charging possession of burglar's tools (see Penal Law § 140.35;  see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   We therefore modify the judgment accordingly.   We reject the further contention of defendant that the element of intent in the burglary count was negated by his intoxication and thus that the burglary conviction is not supported by legally sufficient evidence (see § 15.25).   The conflicting evidence with respect to defendant's alleged intoxication presented a credibility determination for the factfinder to resolve (see People v. Tricic, 34 A.D.3d 1319, 825 N.Y.S.2d 616, lv. denied 8 N.Y.3d 850, 830 N.Y.S.2d 709, 862 N.E.2d 801).

 Finally, we reject defendant's contention that the court abused its discretion in denying defense counsel's request for an examination to determine whether defendant was competent to assist in his own defense (see CPL 730.30 [1] ).   The court conducted an inquiry with respect to defendant's concerns, and the court had ample opportunity to observe defendant and to determine “that there [was] no proper basis for questioning the defendant's sanity” (People v. Armlin, 37 N.Y.2d 167, 171, 371 N.Y.S.2d 691, 332 N.E.2d 870;  see People v. Tortorici, 92 N.Y.2d 757, 765, 686 N.Y.S.2d 346, 709 N.E.2d 87, cert. denied 528 U.S. 834, 120 S.Ct. 94, 145 L.Ed.2d 80).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by reversing that part convicting defendant of possession of burglar's tools, granting the motion to dismiss count four of the indictment and dismissing that count of the indictment and as modified the judgment is affirmed.

MEMORANDUM: