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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Benjamin CHERRY, Defendant-Appellant.

Decided: April 19, 2001

WILLIAMS, J.P., WALLACH, LERNER, RUBIN and FRIEDMAN, JJ. Vincent Rivellese, for Respondent. Paul Weiner, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Michael Corriero, J.), rendered August 13, 1998, convicting defendant, after a jury trial, of attempted burglary in the second degree, criminal possession of stolen property in the fourth and fifth degrees, and possession of burglar's tools, and sentencing him, as a persistent violent felony offender, to concurrent terms of 12 years to life, 2 to 4 years, 1 year and 1 year, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   The evidence established that defendant was observed on the roof of a building after he had taken very peculiar measures to enter the adjacent building and squeezed through a hole in a fence on the roof which separated both buildings. Defendant was observed walking back and forth across the rear of the building roof, constantly looking over the edge of the building, and twice descending a few of the steps of the fire escape.   There was no evidence that defendant had any prior relationship with the occupants of the building that could have explained his behavior.   Moreover, defendant was in possession of a screwdriver, which is a common burglar's tool.   Under these circumstances, the jury properly concluded that defendant came dangerously close to entering the building, and that he had the intent to commit a crime therein (see, People v. Van Etten, 162 A.D.2d 976, 557 N.Y.S.2d 202, lv. denied 76 N.Y.2d 1025, 565 N.Y.S.2d 775, 566 N.E.2d 1180).

The procedure under which defendant was sentenced as a persistent felony offender was not unconstitutional (compare, Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350, with Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435).

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