PEOPLE v. CARTER

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The PEOPLE, etc., respondent, v. Mark CARTER, appellant.

Decided: March 09, 2010

REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, PLUMMER E. LOTT, and LEONARD B. AUSTIN, JJ. Lynn W.L. Fahey, New York, N.Y. (Jonathan Garvin of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Shulamit Rosenblum Nemec, and Jones Day [Alex McBride], of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Holdman, J.), rendered June 12, 2008, convicting him of burglary in the third degree and possession of burglar's tools, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant failed to preserve for appellate review his contention that there was legally insufficient proof of his guilt of the charges of burglary in the third degree and possession of burglar's tools (see CPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 491-492, 872 N.Y.S.2d 395, 900 N.E.2d 946; People v. Martinez, 17 A.D.3d 606, 607, 794 N.Y.S.2d 397). 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 of burglary in the third degree beyond a reasonable doubt (see People v. Diaz, 53 A.D.3d 504, 505, 862 N.Y.S.2d 73; People v. Ferraro, 49 A.D.3d 550, 551, 855 N.Y.S.2d 552; People v. Stanley, 12 A.D.3d 467, 786 N.Y.S.2d 533; People v. Brown, 276 A.D.2d 799, 715 N.Y.S.2d 251). Contrary to the defendant's contention, the prosecution did not limit its theory of burglary to one in which the defendant entered the dwelling with the intent to commit a particular crime (see People v. Ramadhan, 50 A.D.3d 339, 854 N.Y.S.2d 717; People v. Thomas, 38 A.D.3d 1134, 1137, 832 N.Y.S.2d 688; People v. Moore, 303 A.D.2d 691, 692, 757 N.Y.S.2d 78). The evidence also was legally sufficient to establish the defendant's guilt of the crime of possession of burglar's tools (see People v. Mejias, 296 A.D.2d 583, 745 N.Y.S.2d 726; see also People v. Wendley, 260 A.D.2d 185, 688 N.Y.S.2d 29).

In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

Contrary to the defendant's contention, trial counsel provided the defendant with meaningful representation (see People v. Taylor, 1 N.Y.3d 174, 770 N.Y.S.2d 711, 802 N.E.2d 1109; People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584; People v. Hernandez, 49 A.D.3d 335, 853 N.Y.S.2d 79; People v. Winchell, 46 A.D.3d 1096, 1098, 847 N.Y.S.2d 732).

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