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

The PEOPLE of the State of New York, Respondent, v. Anthony WILLIAMS, Defendant–Appellant.


Decided: February 21, 2019

Friedman, J.P., Gische, Kapnick, Gesmer, Kern, JJ. Janet E. Sabel, The Legal Aid Society, New York (Steven J. Miraglia of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Jennifer L. Watson of counsel), for respondent.

Judgment, Supreme Court, Bronx County (John W. Carter, J.), rendered September 17, 2013, as amended December 3, 2018, convicting defendant, after a jury trial, of criminal contempt in the first degree (three counts), assault in the third degree, falsely reporting an incident in the second degree, burglary in the second degree, forcible touching, and criminal contempt in the second degree, and sentencing him to an aggregate maximum term of 17 years and 2 months, unanimously affirmed.

Defendant's arguments concerning the sufficiency and weight of the evidence supporting the burglary conviction are unavailing (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).  There is no basis for disturbing the jury's credibility determinations.  The element of unlawful entry was amply supported by the victim's testimony that defendant entered her apartment despite her objections, as well as being in violation of an order of protection (see People v. Cajigas, 19 N.Y.3d 697, 701, 955 N.Y.S.2d 296, 979 N.E.2d 240 [2012];  People v. Lewis, 5 N.Y.3d 546, 552, 807 N.Y.S.2d 1, 840 N.E.2d 1014 [2012] ).  The evidence also supports a reasonable inference that when defendant entered the apartment, he intended, at least, to threaten the victim and subject her to forcible touching.

The court properly denied defendant's request for a missing witness charge with respect to police officers who had allegedly examined damage to the victim's window caused by defendant's entry into her apartment.  The officers would not have provided material testimony (see generally People v. Gonzalez, 68 N.Y.2d 424, 427, 509 N.Y.S.2d 796, 502 N.E.2d 583 [1986] ), because whether defendant caused damage when he opened the window and entered over the victim's objection was not a material issue in the context of the case.

We perceive no basis for reducing the sentence.