PEOPLE v. TRICIC (2006)

 Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, burglary in the second degree (Penal Law § 140.25[2] ).   Contrary to defendant's contention, the evidence is legally sufficient to support the conviction of burglary (see People v. McClusky, 12 A.D.3d 1174, 1175, 784 N.Y.S.2d 425, lv. denied 4 N.Y.3d 765, 792 N.Y.S.2d 9, 825 N.E.2d 141;  People v. Plume, 306 A.D.2d 916, 917, 762 N.Y.S.2d 313, lv. denied 100 N.Y.2d 644, 769 N.Y.S.2d 210, 801 N.E.2d 431;  People v. Murray, 278 A.D.2d 898, 899, 718 N.Y.S.2d 554, lv. denied and lv. dismissed 96 N.Y.2d 804, 726 N.Y.S.2d 382, 750 N.E.2d 84;  see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The element of larcenous intent “may be inferred from the circumstances of the entry” (People v. Gaines, 74 N.Y.2d 358, 362 n. 1, 547 N.Y.S.2d 620, 546 N.E.2d 913;  see People v. Barnes, 50 N.Y.2d 375, 381, 429 N.Y.S.2d 178, 406 N.E.2d 1071;  People v. Mackey, 49 N.Y.2d 274, 280, 425 N.Y.S.2d 288, 401 N.E.2d 398) and from the theft completed inside the premises (see Murray, 278 A.D.2d at 899, 718 N.Y.S.2d 554;  People v. Rodriguez, 200 A.D.2d 775, 776, 607 N.Y.S.2d 100, lv. denied 83 N.Y.2d 876, 613 N.Y.S.2d 136, 635 N.E.2d 305).   We reject the further contention of defendant that, based upon his intoxication, he was unable to form the requisite intent to commit a crime.   The conflicting testimony concerning defendant's intoxication presented a credibility issue for the jury (see People v. Ramirez, 278 A.D.2d 897, 719 N.Y.S.2d 435, lv. denied 96 N.Y.2d 833, 729 N.Y.S.2d 454, 754 N.E.2d 214;   People v. Jackson, 269 A.D.2d 867, 703 N.Y.S.2d 804, lv. denied 95 N.Y.2d 798, 711 N.Y.S.2d 166, 733 N.E.2d 238;  People v. Ábdul-Malik, 156 A.D.2d 1023, 549 N.Y.S.2d 304, lv. denied 75 N.Y.2d 866, 553 N.Y.S.2d 298, 552 N.E.2d 877).   Defendant failed to preserve for our review his contention that he was denied a fair trial by prosecutorial misconduct on summation (see CPL 470. 05[2] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a];  People v. Dean, 28 A.D.3d 1118, 1119, 815 N.Y.S.2d 380).   Defendant also failed to preserve for our review his contention concerning judicial bias (see People v. Prado, 4 N.Y.3d 725, 726, 790 N.Y.S.2d 418, 823 N.E.2d 824, rearg. denied 4 N.Y.3d 795, 795 N.Y.S.2d 170, 828 N.E.2d 86) and that contention lacks merit in any event.   County Court did not evince bias against defendant in apprising the jury of a fact conclusively established by defendant's prior conviction (see generally People v. Matos, 28 A.D.3d 1120, 1121, 816 N.Y.S.2d 776;  People v. Maxam, 301 A.D.2d 791, 793, 753 N.Y.S.2d 599, lv. denied 99 N.Y.2d 617, 757 N.Y.S.2d 828, 787 N.E.2d 1174;  People v. Darling, 276 A.D.2d 922, 924, 714 N.Y.S.2d 393, lv. denied 96 N.Y.2d 733, 722 N.Y.S.2d 800, 745 N.E.2d 1023).   Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: