PEOPLE v. GILLESPIE

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

The PEOPLE, etc., respondent, v. Maurice GILLESPIE, appellant.

Decided: December 26, 2006

HOWARD MILLER, J.P., REINALDO E. RIVERA, PETER B. SKELOS, and ROBERT J. LUNN, JJ. Lynn W.L. Fahey, New York, N.Y. (Katherine R. Schaefer of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, and Michael S. Horn of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Blumenfeld, J.), rendered September 2, 2004, convicting him of grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's appellate challenge to the legal sufficiency of the evidence is unpreserved for appellate review since it is based on arguments not specifically raised in his motion pursuant to CPL 290.10 (see CPL 470.05 [2];  People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Leon, 19 A.D.3d 509, 509-510, 797 N.Y.S.2d 525, affd. 7 N.Y.3d 109, 817 N.Y.S.2d 619, 850 N.E.2d 666;  People v. Alexander, 12 A.D.3d 524, 783 N.Y.S.2d 867).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5] ).

 The defendant further contends that the sentencing court improperly adjudicated him a second felony offender based upon his conviction in Indiana under a statute that provides that a person is guilty of burglary when he or she “breaks and enters the building or structure of another person, with intent to commit a felony in it” (Indiana Code § 35-43-2-1).   Upon examination of the elements of the Indiana statute and comparison with New York Penal Law § 140.20 (see Penal Law § 70.06;  People v. Muniz, 74 N.Y.2d 464, 467-468, 548 N.Y.S.2d 633, 547 N.E.2d 1160;  People v. Gonzalez, 61 N.Y.2d 586, 589, 475 N.Y.S.2d 358, 463 N.E.2d 1210;  People v. Garrett, 130 A.D.2d 505, 515 N.Y.S.2d 86), the sentencing court correctly determined that the Indiana breaking and entering statute requires the same proof of a knowingly unlawful entry as the New York statute (see People v. Parker, 41 N.Y.2d 21, 24, 390 N.Y.S.2d 837, 359 N.E.2d 348;  People v. Banks, 204 A.D.2d 473, 614 N.Y.S.2d 163;  People v. Morales, 143 A.D.2d 949, 950, 534 N.Y.S.2d 183;  see also People v. Franqui, 121 A.D.2d 160, 502 N.Y.S.2d 743;  Gilliam v. State, 508 N.E.2d 1270 [Ind.];   Smith v. State, 477 N.E.2d 857, 860-867 [Ind.] ).   Further, although the Indiana statute defines the places of entry to include either a “building” or a “ structure,” and has been interpreted broadly to include a fence (see McCovens v. State, 539 N.E.2d 26, 29 [Ind.] ), examination of the Indiana accusatory instrument reveals that the defendant was not accused of breaking into property through a fence but of entering a building through a balcony door (see People v. Butler, 169 A.D.2d 246, 252-253, 573 N.Y.S.2d 804;  People v. Adams, 164 A.D.2d 546, 565 N.Y.S.2d 821;  People v. Morales, 143 A.D.2d 949, 949-950, 534 N.Y.S.2d 183).   Thus, the defendant was properly adjudicated a second felony offender based on the Indiana conviction (see Penal Law §§ 70.06;  140.20).

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