PEOPLE v. GATES (2019)

We reject defendant's arguments concerning the sufficiency and weight of the evidence supporting his burglary conviction (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).  The evidence supports inferences that after the victim revoked any license that defendant may have had to be in her apartment, defendant remained unlawfully with the contemporaneous intent to commit a crime (see generally People v. Gaines, 74 N.Y.2d 358, 363, 547 N.Y.S.2d 620, 546 N.E.2d 913 [1989] ).  This was not a case like People v. Swinson, 154 A.D.3d 533, 61 N.Y.S.3d 885 (1st Dept. 2017) and the similar cases cited therein, where a defendant who, during an argument, spontaneously attacked a victim upon being told to leave the premises was found not to have committed burglary.  Here, there was an extended encounter, during which defendant refused to leave, menaced the victim and threatened to kill her, before he ultimately attacked her.  The jury could have reasonably inferred, particularly in light of defendant's prior similar acts of domestic violence against the victim (see People v. Melendez, 206 A.D.2d 270, 271, 613 N.Y.S.2d 867 [1st Dept. 1994], lv. denied 84 N.Y.2d 870, 618 N.Y.S.2d 16, 642 N.E.2d 335 [1994] ), that he remained in the apartment with criminal intent.

Defendant's challenge to the court's response to a jury note regarding the intent element of burglary is unpreserved, and we decline to review it in the interest of justice.  As an alternative holding, we find no basis for reversal.  The supplemental charge was correct as a whole, as was the main charge, and the court's slight misstatement of the law in the supplemental charge could not have misled the jury (see People v. Umali, 10 N.Y.3d 417, 426–427, 859 N.Y.S.2d 104, 888 N.E.2d 1046 [2008], cert denied 556 U.S. 1110, 129 S.Ct. 1595, 173 L.Ed.2d 685 [2009] ).