PEOPLE v. MITCHELL (1998)

 Defendant appeals from a judgment convicting him following a bench trial of burglary in the second degree (Penal Law § 140.25[2] ) and criminal impersonation in the second degree (Penal Law § 190.25 [2] ).  There is no merit to the contention of defendant that his conviction of burglary in the second degree is not supported by legally sufficient evidence of an unlawful entry or his intent to commit a crime therein.   The unlawful entry was established by proof that defendant gained entry to the victim's home by means of deception, trickery or misrepresentation (see, People v. Johnson, 190 A.D.2d 503, 504, 593 N.Y.S.2d 35, affd. 82 N.Y.2d 683, 601 N.Y.S.2d 468, 619 N.E.2d 405;  People v. Thompson, 116 A.D.2d 377, 380-381, 501 N.Y.S.2d 381;  see generally, People v. Graves, 76 N.Y.2d 16, 20-21, 556 N.Y.S.2d 16, 555 N.E.2d 268).   Defendant's intent to commit a crime may be inferred from the circumstances of the entry, from defendant's unexplained or unauthorized presence on the premises and from defendant's actions and assertions when confronted by the police or the owner (see, People v. Gates, 170 A.D.2d 971, 971-972, 566 N.Y.S.2d 137, lv. denied 78 N.Y.2d 922, 573 N.Y.S.2d 475, 577 N.E.2d 1067;  see generally, People v. Mackey, 49 N.Y.2d 274, 280, 425 N.Y.S.2d 288, 401 N.E.2d 398).

 There is no merit to the contention of defendant that his conviction of criminal impersonation in the second degree is not supported by legally sufficient evidence that he pretended to be a representative of an organization or that he acted in that capacity with the intent to obtain a benefit or to injure or defraud the victim.   Contrary to defendant's assertion, the proof establishes that defendant gained entry to the victim's home by posing as a utility company repairman.   The cases upon which defendant relies involve convictions under subdivision (1) of Penal Law § 190.25 and thus are not applicable.

 Defendant has failed to preserve for our review his contention that County Court erred by not advising counsel before summation of the offenses it would consider in rendering a verdict (see, People v. Owens, 231 A.D.2d 901, 648 N.Y.S.2d 406, lv. denied 89 N.Y.2d 945, 655 N.Y.S.2d 896, 678 N.E.2d 509).   In any event, the court's failure to comply with CPL 320.20(5) is harmless error inasmuch as defendant was convicted of offenses charged in the indictment, not lesser included offenses (see, People v. Satcher, 144 A.D.2d 992, 534 N.Y.S.2d 618, lv. denied 73 N.Y.2d 896, 538 N.Y.S.2d 808, 535 N.E.2d 1348;  see also, People v. Harvey, 249 A.D.2d 951, 673 N.Y.S.2d 274).   The sentence is neither unduly harsh nor severe.

Judgment unanimously affirmed.

MEMORANDUM: