PEOPLE v. MERCEDES (2019)

Judgment, Supreme Court, New York County (Kevin B. McGrath, Jr., J. at speedy trial motion;  Melissa C. Jackson, J. at jury trial and sentencing), rendered April 11, 2018, convicting defendant of burglary in the second degree as a sexually motivated felony and public lewdness, and sentencing him to an aggregate term of 3 1/212 years, unanimously affirmed. The matter is remitted to Supreme Court for further proceedings pursuant to CPL 460.50(5).

The verdict was supported by legally sufficient evidence (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 establishes a knowingly unlawful entry.  At a building that had a no-trespassing sign, and whose gated courtyard and lobby were both secured by locks and buzzer systems, defendant passed through both entrances by following a resident who entered by means of a key.  The fact that defendant did not reside in the building could be inferred from the manner of these entries, as well as defendant's attempt to use an elevator that had been out of service for more than a year.  The jury could have reasonably found that a witness's courteous act of stopping the lobby door from slamming on defendant gave him no reason to believe the witness had conferred upon defendant a license to enter where no such license otherwise existed.  We also note that although defendant was charged with unlawfully entering the building, the circumstances of his entrance into the gated courtyard were equally relevant to his knowing, unlawful entry into the lobby.  Finally, defendant's conduct immediately after he entered established that he entered with intent to, at least, commit the crime of public lewdness.

The court properly denied defendant's speedy trial motion.  Contrary to defendant's assertion, the single period of postreadiness delay at issue was not “unexplained.”  The record adequately explained (see People v. Brown, 28 N.Y.3d 392, 404, 45 N.Y.S.3d 320, 68 N.E.3d 45 [2016] ) that the case had been adjourned, on consent, for purposes of disposition to allow defendant to consider a plea offer, and that when defendant rejected the offer, the court adjourned the matter for trial, thereby according the People a reasonable time to prepare (see e. g. People v. Reynoso, 295 A.D.2d 156, 157, 744 N.Y.S.2d 7 [1st Dept 2002], lv denied 98 N.Y.2d 701, 747 N.Y.S.2d 420, 776 N.E.2d 9 [2002];  People v. Delvalle, 265 A.D.2d 174, 696 N.Y.S.2d 432 [1st Dept. 1999], lv denied 94 N.Y.2d 879, 705 N.Y.S.2d 11, 726 N.E.2d 488 [2000] ).

The trial court providently exercised its discretion (see People v. Patterson, 93 N.Y.2d 80, 84, 688 N.Y.S.2d 101, 710 N.E.2d 665 [1999] ) in admitting a very brief portion of a surveillance videotape that, unlike the rest of the videotapes in evidence, could not be directly authenticated by a witness to the events depicted.  “The totality of the evidence, including the relationship of the videotapes at issue to other videotapes that were undisputedly authenticated, supported the inference that the videotapes at issue depicted the relevant [events], and any alleged uncertainty went to the weight to be accorded the evidence rather than its admissibility” (People v. Reed, 169 A.D.3d 573, 574, 95 N.Y.S.3d 81 [1st Dept. 2019];  see also People v. McEachern, 148 A.D.3d 565, 566, 50 N.Y.S.3d 59 [1st Dept. 2017], lv denied 29 N.Y.3d 1083, 64 N.Y.S.3d 172, 86 N.E.3d 259 [2017] ).