SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

365 

KA 14-00499 

PRESENT: CENTRA, J.P., CARNI, DEJOSEPH, CURRAN, AND SCUDDER, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

JEREMY C. MAIER, DEFENDANT-APPELLANT.

 

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (TIMOTHY

J. GARVIN OF COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Erie County Court (Sheila A.

DiTullio, J.), rendered May 13, 2013. The judgment convicted

defendant, upon a jury verdict, of assault in the third degree,

burglary in the first degree and criminal trespass in the second

degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him

upon a jury verdict of assault in the third degree (Penal Law § 120.00

[1]), burglary in the first degree (§ 140.30 [2]), and criminal

trespass in the second degree (§ 140.15 [1]). Defendant failed to

preserve for our review his contention that the evidence is legally

insufficient to support the conviction with respect to burglary in the

first degree and assault in the third degree inasmuch as defendant

failed to renew his motion for a trial order of dismissal after

presenting evidence (see People v Hines, 97 NY2d 56, 61, rearg denied

97 NY2d 678). In any event, we conclude that defendant’s contention

lacks merit (see generally People v Bleakley, 69 NY2d 490, 495).

In particular, defendant contends that the evidence with respect

to the burglary conviction is legally insufficient because the People

did not establish that he entered the victim’s dwelling with intent to

commit a crime therein. “ ‘In order to secure a conviction for

burglary, the People need only allege and prove a knowing and unlawful

entry coupled with an intent to commit a crime therein. There is no

requirement that the People allege or establish what particular crime

was intended’ ” (People v Lewis, 5 NY3d 546, 552; see People v James,

114 AD3d 1202, 1204, lv denied 22 NY3d 1199). Additionally, “[a]

defendant’s intent to commit a crime ‘may be inferred from the

circumstances of the entry’ ” (People v Sterina, 108 AD3d 1088, 1090),
-2- 365 

KA 14-00499 

as well as “ ‘from defendant’s actions and assertions when 

confronted’ ” (People v Jamieson, 88 AD3d 1298, 1299). Here, contrary

to defendant’s contention, the People established that defendant

intended to commit at least one of three crimes when he entered the

victim’s residence—i.e., assault in the first degree (Penal Law 

§ 120.10), assault in the third degree (§ 120.00), or menacing in the

third degree (§ 120.15)—as demonstrated by the facts that defendant

was armed with a knife when he entered the residence through a window,

threatened to eject the victim from the residence, and immediately

lunged at the victim from the windowsill, initiating a fight in which

defendant punched the victim and tore out a handful of the victim’s

hair.

Viewing the evidence in light of the elements of burglary in the

first degree 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). Moreover,

inasmuch as “ ‘the evidence is legally sufficient to support

defendant’s conviction . . . , it cannot be said that defense

counsel’s failure to renew the motion for a trial order of dismissal

constitutes ineffective assistance of counsel’ ” (People v Kaminski,

109 AD3d 1186, 1186-1187, lv denied 22 NY3d 1088; see generally People

v Caban, 5 NY3d 143, 152). Defendant’s sentence is not unduly harsh

or severe. We have reviewed defendant’s remaining contentions and

conclude that they lack merit. 

Entered: June 10, 2016 Frances E. Cafarell

Clerk of the Court