SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
922
KA 11-00452
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
BRANDON BIBBES, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF
COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County (John L.
Michalski, A.J.), rendered January 4, 2011. The judgment convicted
defendant, upon a jury verdict, of burglary in the second degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury
verdict of burglary in the second degree (Penal Law § 140.25 [2]),
defendant contends that the conviction is not supported by legally
sufficient evidence based on the alleged inadequacy of the evidence of
his intent to commit a crime within the dwelling. That contention is
unpreserved for our review inasmuch as defendant’s motion for a trial
order of dismissal was not specifically directed at the alleged
deficiency in the People’s proof (see People v Gray, 86 NY2d 10, 19;
People v Roman, 85 AD3d 1630, 1630, lv denied 17 NY3d 821). Even if
defendant had moved at the close of the People’s proof for a trial
order of dismissal directed at the alleged deficiency, his contention
nevertheless would not be preserved for our review because he did not
renew the motion after presenting proof (see People v Hines, 97 NY2d
56, 61, rearg denied 97 NY2d 678). To the extent that defendant is in
effect contending that the verdict was inconsistent, i.e., that his
acquittal of the attempted rape and sexual abuse charges necessarily
should have led to an acquittal of the burglary charge, his contention
is likewise unpreserved for our review inasmuch as he failed to object
to the alleged inconsistency before the jury was discharged (see
People v Carter, 39 AD3d 1226, 1227, lv denied 9 NY3d 863).
In any event, we reject defendant’s contention (see generally
People v Bleakley, 69 NY2d 490, 495). A person is guilty of burglary
in the second degree under Penal Law § 140.25 (2) when he or she
“knowingly enters or remains unlawfully in a building with intent to
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KA 11-00452
commit a crime therein, and when . . . [t]he building is a dwelling.”
Unless the People expressly limit their theory of liability to a
specific crime based on the pleadings (see People v Barnes, 50 NY2d
375, 379 n 3; People v Kolempear, 267 AD2d 327, 327-328, lv denied 95
NY2d 799) or the People effectively are so limited based on a victim’s
trial testimony (see People v Brown, 251 AD2d 694, 695-696, lv denied
92 NY2d 1029), the People are required to allege and prove “only
defendant’s general intent to commit a crime in the [dwelling] . . .,
not his [or her] intent to commit a specific crime” (People v Lewis, 5
NY3d 546, 552). Moreover, the People are not required to prove that
the intended crime was in fact committed (see People v Mackey, 49 NY2d
274, 279; People v Porter, 41 AD3d 1185, 1186, lv denied 9 NY3d 963;
People v Collier, 204 AD2d 1064, 1064, lv denied 84 NY2d 824).
Here, the victim testified that, after defendant knocked on her
door and told her that he had an emergency and needed to use her
telephone, she opened the door a crack. Defendant then “pushed the
door in” and cornered the victim in the hallway, choking and slapping
her. According to the victim, defendant made sexual comments to her
and began fondling her breasts while his erect penis was visible
through his pants. Defendant left the victim’s residence only after
she kneed him in the groin. The People did not limit themselves in
their pleadings to the theory that defendant intended to commit a
particular crime inside the victim’s dwelling. Even if, as defendant
contends, the People’s evidence effectively limited their theory to an
allegation that defendant intended to commit rape and sexual abuse,
the People were required to prove only that defendant intended to
commit those crimes (see Porter, 41 AD3d at 1186), and the jury could
infer such intent “based upon the circumstances of the unlawful entry
as well as [defendant’s] other actions while inside the [dwelling]”
(People v Rivera, 41 AD3d 1237, 1238, lv denied 10 NY3d 939). Thus,
“[i]t is of no moment that the jury acquitted defendant of sexual
abuse in the [first] degree . . . [T]hat crime requires proof of a
completed act, whereas burglary only requires an intent to commit a
crime” (People v Williams, 38 AD3d 327, 327-328, lv denied 9 NY3d
871). Here, the jury could have found that defendant intended to rape
the victim, but that he did not come “dangerously close” to fruition
(People v Johnson, 94 AD3d 1563, 1564, lv denied 19 NY3d 962 [internal
quotation marks omitted]). In addition, viewing the evidence in light
of the elements of the crime as charged to the jury (see People v
Danielson, 9 NY3d 342, 349), we conclude that the verdict is not
against the weight of the evidence (see generally Bleakley, 69 NY2d at
495).
We reject defendant’s further contention that Supreme Court erred
in permitting the victim to testify that, on the day after the
incident, defendant told the victim that he would “cap her and her
daughter” because he would not go to jail for a crime he did not
commit, and that defendant then pulled up his shirt and revealed “like
a little gun or something like that in his waist.” It is well
established that “ ‘[e]vidence of threats made by the defendant
against one of the People’s witnesses, although evidence of prior bad
acts, [is] admissible on the issue of consciousness of guilt’ ”
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KA 11-00452
(People v Pugh, 236 AD2d 810, 812, lv denied 89 NY2d 1099; see People
v Arguinzoni, 48 AD3d 1239, 1240, lv denied 10 NY3d 859; People v
Maddox, 272 AD2d 884, 885, lv denied 95 NY2d 867) and, here, we
conclude that the court did not abuse its discretion in determining
that the probative value of that evidence outweighed any “unfair
prejudice” (People v Dorm, 12 NY3d 16, 19). Defendant failed to
preserve for our review his further contention that the court should
have provided a contemporaneous limiting instruction inasmuch as he
failed to request such an instruction (see People v Burnell, 89 AD3d
1118, 1121, lv denied 18 NY3d 922; see generally People v Sommerville,
30 AD3d 1093, 1094-1095). In any event, in its jury charge, the court
properly instructed the jury that the evidence could be considered
only as evidence of defendant’s consciousness of guilt, and the jury
is presumed to have followed that instruction (see People v Wallace,
59 AD3d 1069, 1070, lv denied 12 NY3d 861).
Contrary to the further contention of defendant, we conclude that
he was not denied effective assistance of counsel based on defense
counsel’s failure to assert the right of defendant to testify before
the grand jury. “In contrast to a defendant’s right to testify at
trial, a defendant’s right to testify before the grand jury is a
limited statutory right” (People v Lasher, 74 AD3d 1474, 1475, lv
denied 15 NY3d 894), and the “failure of defense counsel to facilitate
defendant’s testimony before the grand jury does not, per se, amount
to the denial of effective assistance of counsel” (People v Simmons,
10 NY3d 946, 949; see People v Wiggins, 89 NY2d 872, 873; People v
Perez, 67 AD3d 1324, 1325, lv denied 13 NY3d 941). Here, defendant
has not established that defense counsel was ineffective based on that
single failure. In this case, as in Simmons, “defendant failed to
establish that he was prejudiced by the failure of his attorney to
effectuate his appearance before the grand jury” (id. at 949; see also
People v Ponder, 42 AD3d 880, 881, lv denied 9 NY3d 925). Aside from
defendant’s contention that the error precluded him from “presenting
testimony of what actually occurred at the [victim]’s home,” “there is
no claim that had he testified in the grand jury, the outcome would
have been different” (Simmons, 10 NY3d at 949; see People v Rojas, 29
AD3d 405, 406, lv denied 7 NY3d 794). Notably, defendant did not
testify at trial (see People v Sutton, 43 AD3d 133, 136, affd sub nom.
People v Simmons, 10 NY3d 946, 947 n 1).
Finally, the sentence is not unduly harsh or severe.
Entered: September 28, 2012 Frances E. Cafarell
Clerk of the Court