THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. GARY BERGMAN DEFENDANT APPELLANT (2010)

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him, upon a jury verdict, of burglary in the third degree (Penal Law § 140.20) and criminal mischief in the third degree (§ 145.05[2] ).   The conviction arises from an incident in which defendant forcibly entered a bar after hours by breaking the glass windows in two entryway doors and pulling the alarm system off the wall.   We reject defendant's contention that the evidence is legally insufficient to support the conviction (see generally People v. Bleakley, 69 N.Y.2d 490, 495).  “In burglary cases [based on circumstantial evidence, as is the case herein], the defendant's intent to commit a crime within the premises may be inferred beyond a reasonable doubt from the circumstances of the entry” (People v. Gates, 170 A.D.2d 971, 971-972, lv denied 78 N.Y.2d 922 [internal quotation marks omitted];  see People v. Gaines, 74 N.Y.2d 358, 362 n 1).   The fact that defendant used force in obtaining entry to the bar by breaking the glass windows in the entryway doors “amply supports the inference that he had criminal intent[, and t]hat inference is buttressed by numerous other factors, primarily defendant's unexplained and unauthorized presence on the premises” in the early hours of the morning (Gates, 170 A.D.2d at 972).   Similarly, with respect to the criminal mischief count, defendant's intent to damage the property may be inferred from the circumstances of the incident (see People v. Bryant, 13 AD3d 1170, lv denied 4 NY3d 884).

Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495).   Based on the testimony of the witnesses, the photographs depicting the damaged property, and the DNA evidence placing defendant at the scene of the incident, it cannot be said that the jury failed to give the evidence the weight it should be accorded (see generally id.).   Contrary to the further contention of defendant in his main and pro se supplemental briefs, we conclude that the evidence, the law, and the circumstances of this case, viewed in totality and as of the time of the representation, establish that he received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147;  People v. Workman, 277 A.D.2d 1029, 1032, lv. denied 96 N.Y.2d 764).

Finally, because defendant failed to include in the record on appeal the motion papers concerning the alleged denial of his right to a speedy trial, we are unable to review the merits of his contention concerning that alleged denial, raised in his pro se supplemental brief (see People v. Highsmith, 254 A.D.2d 768, 770, lv denied 92 N.Y.2d 983, 1033;  see also People v. Velez, 223 A.D.2d 414, lv denied 88 N.Y.2d 855;  People v. Calderon, 223 A.D.2d 380, lv denied 87 N.Y.2d 1017).

Patricia L. Morgan

Clerk of the Court