SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

667 

KA 11-01412 

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, AND VALENTINO, JJ.

 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

CARLA C. STERINA, DEFENDANT-APPELLANT.

 

SCHIANO LAW OFFICE, P.C., ROCHESTER (MICHAEL P. SCHIANO OF COUNSEL),

FOR DEFENDANT-APPELLANT. 

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Monroe County

(Francis A. Affronti, J.), rendered March 15, 2011. The judgment

convicted defendant, upon a jury verdict, of burglary in the first

degree (two counts) and assault in the second degree (two counts). 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: Defendant appeals from a judgment convicting her

upon a jury verdict of two counts each of burglary in the first degree

(Penal Law § 140.30 [2], [3]) and assault in the second degree (§

120.05 [2], [6]). We reject defendant’s contention that Supreme Court

erred in refusing to charge criminal trespass in the second degree (§

140.15 [1]) as a lesser included offense of burglary in the first

degree (§ 140.30 [2], [3]). Contrary to defendant’s contention, there

is no reasonable view of the evidence to support the theory that she

unlawfully entered the victim’s dwelling, but did not intend to commit

a crime therein (see § 140.30; People v Santos, 101 AD3d 427, 428, lv

denied 20 NY3d 1103; People v Clarke, 233 AD2d 831, 832, lv denied 89

NY2d 1010, reconsideration denied 90 NY2d 856; see generally People v

Glover, 57 NY2d 61, 63-64). The evidence established that defendant

and her accomplices broke down the door, entered the house armed with

one or more baseball bats, and immediately attacked the victim’s son

(see People v Massey, 45 AD3d 1044, 1046, lv denied 9 NY3d 1036). To

the extent that defendant contends that she was entitled to the lesser

included charge because there is a reasonable view of the evidence

that she did not enter the victim’s house, that assertion is

unpreserved (see People v McCoy, 91 AD3d 537, 537-538). In any event,

that contention lacks merit inasmuch as both criminal trespass in the

second degree and burglary in the first degree require entry into a

dwelling (see §§ 140.15 [1]; 140.30). 
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KA 11-01412 

As defendant correctly concedes, her challenge to the legal

sufficiency of the evidence with respect to the crime of burglary in

the first degree is unpreserved for our review inasmuch as she failed

to renew her motion for a trial order of dismissal after presenting

evidence (see People v Lugo, 87 AD3d 1403, 1404, lv denied 18 NY3d

860). In any event, that contention is without merit. Contrary to

defendant’s contention, the People established that she entered a

dwelling, i.e., the victim’s home, which is a necessary element of

burglary in the first degree (see Penal Law § 140.30; People v Prince,

51 AD3d 1052, 1053-1054, lv denied 10 NY3d 938). The entry element of

burglary is satisfied “when a person intrudes within a [dwelling], no

matter how slightly, with any part of his or her body” (People v King,

61 NY2d 550, 555; see People v Cleveland, 281 AD2d 815, 816, lv denied

96 NY2d 900). Here, several witnesses unequivocally testified that

defendant and another assailant entered the foyer of the victim’s home

after breaking down the door, and a recording of the contemporaneous

911 call made by the victim’s sister indicates that she told the 911

operator that the assailants were “inside the house” (see generally

Prince, 51 AD3d at 1054; People v Rivera, 301 AD2d 787, 788, lv denied

99 NY2d 631). Indeed, the victim specifically identified the location

where she observed defendant and the other assailant striking her son,

which was several feet inside the house. With respect to the intent

element, it is well settled that, “in order to be guilty of burglary

for unlawful entry, a defendant must have had the intent to commit a

crime at the time of entry . . . [C]ontemporaneous intent is required”

(People v Gaines, 74 NY2d 358, 363). A defendant’s intent to commit a

crime “may be inferred from the circumstances of the entry” (id. at

362 n 1; see People v Mitchell, 254 AD2d 830, 831, lv denied 92 NY2d

984; Clarke, 233 AD2d at 832). Here, we conclude that the violent

nature of defendant’s entry into the home, including breaking down the

door, forcing her way into the house, and immediately attacking the

occupants, sufficiently establishes her intent to commit a crime at

the time of entry (see Massey, 45 AD3d at 1046; Clarke, 233 AD2d at

832). Contrary to the further contention of defendant, we conclude

that, viewing the evidence in light of the elements of the crimes as

charged to the jury (see People v Danielson, 9 NY3d 342, 349), the

verdict is not against the weight of the evidence on the issue of

identification (see People v Dark, 104 AD3d 1158, 1158; People v Carr,

99 AD3d 1173, 1174, lv denied 20 NY3d 1010; People v Mobley, 49 AD3d

1343, 1345, lv denied 11 NY3d 791; see generally People v Bleakey, 69

NY2d 490, 495). Although a different verdict would not have been

unreasonable in light of, inter alia, defendant’s testimony that she

did not participate in the attack, “[t]he jury’s resolution of

credibility and identification issues is entitled to great weight”

(People v Kelley, 46 AD3d 1329, 1331, lv denied 10 NY3d 813 [internal

quotation marks omitted]), and we cannot conclude on this record that

the jury failed to give the evidence the weight it should be accorded

(see Mobley, 49 AD3d at 1345; Kelley, 46 AD3d at 1331). Notably, four

witnesses, including the victim, testified that defendant was one of

the assailants. 

Defendant failed to preserve for our review her contention that

she was denied a fair trial by prosecutorial misconduct on summation
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KA 11-01412 

(see CPL 470.05 [2]; People v Wiley, 104 AD3d 1314, 1314), and we

decline to exercise our power to review that contention as a matter of

discretion in the interest of justice (see CPL 470.15 [6] [a]). 

Contrary to the further contention of defendant, we conclude that the

court did not abuse its discretion in denying without a hearing her

posttrial motion to set aside the verdict pursuant to CPL 330.30 (3)

inasmuch as “defendant failed to show that the allegedly new evidence

could not have been discovered earlier in the exercise of reasonable

diligence” (People v Robertson, 302 AD2d 956, 958, lv denied 100 NY2d

542; see People v Archie, 78 AD3d 1560, 1561, lv denied 16 NY3d 856). 

The purportedly new evidence consisted of affidavits from defendant

and two other witnesses who alleged that defendant’s mother paid two

other women to attack the victims. Defendant, however, admitted that

her mother informed her of those alleged facts over a year prior to

trial.

Finally, the sentence is not unduly harsh or severe.

Entered: July 5, 2013 Frances E. Cafarell

Clerk of the Court