PEOPLE v. RUIZ (2025)

Judgment, Supreme Court, New York County (Gilbert Hong, J.), rendered January 7, 2020, convicting defendant, after a jury trial, of burglary in the second degree and petit larceny, and sentencing him, as a second felony offender, to an aggregate term of seven years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007];  see also People v. Baque, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2024 N.Y. Slip Op. 05244 [2024]).  We perceive no basis to disturb the jury's credibility determinations.  The circumstantial evidence shows defendant knowingly and unlawfully entered the apartment building and maintenance office after hours with the intent to commit a crime (see People v. Thomas, 203 A.D.3d 634, 635, 165 N.Y.S.3d 531 [1st Dept. 2022], lv denied 38 N.Y.3d 1136, 172 N.Y.S.3d 848, 193 N.E.3d 513 [2022]).  The evidence established that there was no lawful way for him to have entered, and that he had no license or privilege to be inside.  Defendant does not dispute that the maintenance office was “both a separate building in itself and a part of the main (residential) building,” which meets the statutory definition of a dwelling (see Penal Law § 140.00[2], [3]).  The temporal proximity between defendant's unlawful entry into the office and the taking of the cell phone provided ample basis for the jury to conclude that defendant entered with the intent to commit a crime once inside (see Thomas, 203 A.D.3d at 635, 165 N.Y.S.3d 531).  The jury was entitled to reject the implausible reason he gave to a building employee for his presence (see People v. Romero, 101 A.D.3d 560, 955 N.Y.S.2d 509 [1st Dept. 2012], lv denied 20 N.Y.3d 1103, 965 N.Y.S.2d 799, 988 N.E.2d 537 [2013]).

Defendant's claim that his attorney rendered ineffective assistance is unreviewable on direct appeal because it involves matters not reflected in, or fully explained by the record (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988];  People v. Love, 57 N.Y.2d 998, 999–1000, 457 N.Y.S.2d 238, 443 N.E.2d 486 [1982]).  Accordingly, since defendant did not raise his challenge to his counsel's performance regarding suppression of the photographic identification in his CPL 440.10 motion, and since this Court denied leave to appeal the denial of his CPL 440.10 motion claiming that his counsel was ineffective for failing to introduce evidence that an employee's fingerprints were found in the maintenance office, the merits of those arguments may not be addressed on appeal.  As an alternative holding, to the extent that the existing record permits review, we find that defendant received effective assistance under state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984]).

We perceive no basis for reducing the sentence.

We have considered the claims in defendant's pro se brief, and find them unavailing.