PEOPLE v. HARRIS (2005)

Judgment, Supreme Court, New York County (Joan Sudolnik, J.), rendered December 5, 2002, convicting defendant, after a jury trial, of burglary in the second degree, forgery in the second degree, criminal possession of a forged instrument in the second degree, criminal possession of stolen property in the fourth degree (eight counts) and criminal possession of stolen property in the fifth degree, and sentencing him, as a persistent violent felony offender, to an aggregate term of 16 years to life, unanimously affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   There was extensive evidence of defendant's guilt, including surveillance videotapes and his own incriminating statements.   Defendant entered a hospital's executive suite and stole property from behind a desk in a cubicle that was unmistakably a nonpublic area even though it was not locked or otherwise secured (see e.g. People v. Terry, 2 A.D.3d 977, 768 N.Y.S.2d 516 [2003], lv. denied 2 N.Y.3d 746, 778 N.Y.S.2d 472, 810 N.E.2d 925 [2004];  People v. Durecot, 224 A.D.2d 264, 638 N.Y.S.2d 16 [1996], lv. denied 88 N.Y.2d 878, 645 N.Y.S.2d 452, 668 N.E.2d 423 [1996] ).   The hospital was a dwelling for purposes of burglary in the second degree because it was a building containing rooms occupied by patients overnight (People v. Shackett, 159 A.D.2d 963, 552 N.Y.S.2d 775 [1990], lv. denied 76 N.Y.2d 796, 559 N.Y.S.2d 1001, 559 N.E.2d 695 [1990] ), notwithstanding that portions of the hospital were open to the public and that the executive suite was not used for lodging (People v. Dwight, 189 A.D.2d 566, 592 N.Y.S.2d 10 [1993], lv. denied 81 N.Y.2d 885, 597 N.Y.S.2d 946, 613 N.E.2d 978 [1993];  People v. Rohena, 186 A.D.2d 509, 589 N.Y.S.2d 156 [1992], lv. denied 81 N.Y.2d 794, 594 N.Y.S.2d 740, 610 N.E.2d 413 [1993] ).

The evidentiary rulings challenged by defendant were proper exercises of discretion.

 Defendant's constitutional challenge to the procedure under which he was sentenced as a persistent violent felony offender is unpreserved for appellate review and, in any event, is without merit (see People v. Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407, 752 N.E.2d 844 [2001], cert. denied 534 U.S. 899, 122 S.Ct. 224, 151 L.Ed.2d 160 [2001] ).   The only factual finding upon which the court based the persistent violent felony offender adjudication was the fact that defendant had been convicted of the requisite prior crimes (see Almendarez-Torres v. United States, 523 U.S. 224, 140 L.Ed.2d 350 [1998];  United States v. Santiago, 268 F.3d 151, 155-156 [2d Cir.2001], cert. denied 535 U.S. 1070, 122 S.Ct. 1946, 152 L.Ed.2d 849 [2002] ).

We have considered and rejected defendant's remaining claims.