Calendar Date: June 7, 2018Before: Garry, P.J., McCarthy, Lynch, Devine and Mulvey, JJ.__________Rural Law Center of New York, Castleton (Keith F. Schockmelof counsel), for appellant.Patrick A. Perfetti, District Attorney, Cortland (ElizabethMcGrath of counsel), for respondent.__________Mulvey, J.Appeal from a judgment of the County Court of CortlandCounty (Ames, J.), rendered August 11, 2015, upon a verdictconvicting defendant of the crime of burglary in the seconddegree.During the early morning hours of September 16, 2014, thevictims awoke to discover a man looking around their apartmentwhile using his cell phone as a flashlight. When one of thevictims left the bed to pursue defendant, he fled the apartment.The victims reported the incident to police later that same day,identifying defendant as the intruder and claiming that a roll ofquarters was missing from their living room. Defendant wassubsequently arrested and charged by indictment with burglary inthe second degree and petit larceny. Following a jury trial, hewas convicted of the burglary charge but acquitted of the larcenycharge. County Court sentenced defendant, as a second violentfelony offender, to nine years in prison followed by five yearsof postrelease supervision. He now appeals.Defendant contends that his conviction was not supported bylegally sufficient evidence and was against the weight of theevidence, specifically contesting the element of intent.Defendant’s challenge to the legal sufficiency of the evidence isunpreserved for our review, as his motion for a trial order ofdismissal was not premised on the specific ground now beingraised on appeal (see People v Luciano, 152 AD3d 989, 993 [2017],lv denied 30 NY3d 1020 [2017]; People v Gray, 151 AD3d 1470, 1472[2017], lv denied 30 NY3d 949 [2017], cert denied ___ US ___, 138S Ct 1295 [2018]). Because defendant also attacks the verdict asagainst the weight of the evidence, we will consider the evidenceadduced as to each element of the crime in the context of thatreview (see People v Chaneyfield, 157 AD3d 996, 996 [2018], lvdenied 31 NY3d 1012 [2018]; People v Ford, 156 AD3d 1242, 1242[2017], lv denied 31 NY3d 1013 [2018]). “Where, as here, adifferent verdict would not have been unreasonable, we weigh therelative probative force of conflicting testimony and therelative strength of conflicting inferences that may be drawnfrom the testimony” (People v Devictor-lopez, 155 AD3d 1434, 1435[2017] [internal quotation marks and citation omitted]; seePeople v Kancharla, 23 NY3d 294, 302-303 [2014]).Insofar as is relevant here, a person is guilty of burglaryin the second degree if he or she knowingly enters a dwellingwith intent to commit a crime therein (see Penal Law § 140.25[2]). Generally, there is no requirement that the People allegeor establish the particular crime that the defendant intended tocommit upon entering the dwelling (see People v Cajigas, 19 NY3d697, 701 [2012]; People v Jones, 155 AD3d 1111, 1112 [2017], lvdenied 31 NY3d 984 [2018]). However, where the People expresslylimit their theory of liability to the intent to commit aspecific crime, they are bound to prove the defendant’s intent tocommit that crime (see People v Lewis, 5 NY3d 546, 552 n 7[2005]; People v Barnes, 50 NY2d 375, 379 n 3 [1980]; People vSanford, 148 AD3d 1580, 1582 [2017], lv denied 29 NY3d 1133[2017]). Because the indictment, as amplified by the bill ofparticulars, expressly limited the theory of the burglary to theintent to commit a petit larceny, the People had the burden ofproving that, at the time he entered the victims’ home, defendantintended to steal property while inside (see Penal Law § 155.25).The trial testimony established that defendant entered thedarkened home of the victims, without their permission, and usedhis cell phone as a flashlight as he surreptitiously examined thecontents within. When the victims awoke and confronteddefendant, he offered no explanation for his presence and insteadran from the home. One of the victims pursued defendant as heran out of the apartment and down the street, but was unable tocatch him. Defendant’s flight can be considered as evidence ofconsciousness of guilt (see People v Sabines, 121 AD3d 1409, 1410[2014], lv denied 25 NY3d 1171 [2015]; People v Bell, 108 AD3d795, 797 [2013], lv denied 22 NY3d 995 [2013]), and his intent tosteal property while inside the apartment may be readily inferredfrom his unexplained presence on the premises, his actions whileinside and his conduct when confronted by the victims (see Peoplev Womack, 143 AD3d 1171, 1171 [2016], lv denied 28 NY3d 1151[2017]; People v Briggs, 129 AD3d 1201, 1203 [2015], lv denied 26NY3d 1038 [2015]; People v Morrison, 127 AD3d 1341, 1342-1343[2015], lv denied 26 NY3d 932 [2015]). Upon evaluating theevidence in a neutral light and giving due deference to thejury’s credibility assessments, we find the verdict to be inaccord with the weight of the evidence (see People v Sabines, 121AD3d at 1410-1411; People v Ostrander, 46 AD3d 1217, 1218 [2007];People v Thomas, 38 AD3d 1134, 1136 [2007], lv denied 9 NY3d 852[2007]).We are similarly unpersuaded by defendant’s contention thatCounty Court erred in denying his request to charge trespass as alesser included offense of the burglary charge. “A defendant isentitled to a lesser included offense charge upon request when(1) it is impossible to commit the greater crime withoutconcomitantly committing the lesser offense by the same conductand (2) there is a reasonable view of the evidence to support afinding that the defendant committed the lesser offense but notthe greater” (People v Morrison, 127 AD3d at 1344 [internalquotation marks, brackets and citations omitted]; see People vDefilippo, 152 AD3d 860, 861 [2017]). While there is no disputethat the first prong of the test has been met (see People vRickett, 94 NY2d 929, 930 [2000]; People v Alsaifullah, 96 AD3d1103, 1104 [2012], lv denied 19 NY3d 994 [2012]), there is noreasonable view of the evidence that defendant did not intend tosteal property when he entered the victims’ apartment.Considering the victims’ description of the encounter, as well asthe corresponding “absence of any evidence suggesting anoncriminal purpose for entry” (People v Martinez, 9 AD3d 679,681 [2004], lvs denied 3 NY3d 705, 709 [2004]; accord People vMorrison, 127 AD3d at 1344; People v Alsaifullah, 96 AD3d at1104), we find no error in County Court’s refusal to charge thelesser included offense.Defendant’s challenge to County Court’s jury instruction onthe burglary charge is unpreserved for our review, as he failedto raise an objection thereto (see CPL 470.05 [2]; People vValcarcel, 160 AD3d 1034, 1038 [2018], lvs denied ___ NY3d ___[May 31, 2018]; People v Gray, 151 AD3d at 1475). In any event,despite an apparent misstatement at one point during theinstruction, County Court immediately went on to provide acorrect statement of the relevant law. Thus, were we to considerthe issue, we would find that the “court’s charge, taken as awhole, conveyed to the jury the correct standard” (People vMedina, 18 NY3d 98, 104 [2011] [internal quotation marks andcitations omitted]; see People v Smith, 16 NY3d 786, 788 [2011];People v Fields, 87 NY2d 821, 823 [1995]; People v Gibson, 121AD3d 1416, 1419 [2014], lv denied 24 NY3d 1119 [2015]; People vEncarnacion, 190 AD2d 607, 608 [1993], lv denied 81 NY2d 1072[1993]).Finally, we reject defendant’s assertion that he wasdeprived of the effective assistance of counsel. Defendant’sclaim of ineffective assistance is largely premised on counsel’sfailure to utilize the information set forth in the bill ofparticulars to argue to the jury that there was no evidence thatdefendant entered the residence in question with the intent tocommit the specific crime of petit larceny. Yet, defendant hasfailed to demonstrate “the absence of strategic or otherlegitimate explanations” for defense counsel’s failure to pursuethis course of action (People v Benevento, 91 NY2d 708, 712[1998] [internal quotation marks and citations omitted]; seePeople v Garcia, 75 NY2d 973, 974 [1990]; People v Rivera, 71NY2d 705, 709 [1988]). Throughout the trial, defense counselvigorously pursued a misidentification defense, attempting toundermine the victims’ credibility due to their delayed report ofthe incident to police and to cast doubt on the reliability ofthe identification based upon the victims’ limited opportunity toobserve him, as well as the inadequacy of the lightingconditions. Counsel could have reasonably determined thatfocusing on defendant’s criminal intent, or lack thereof, when heentered the home “would have undermined the claim that he wassimply not there at all” (People v Howard, 22 NY3d 388, 401[2013]; see People v DeGina, 72 NY2d 768, 777 [1988]; People vDiaz, 149 AD3d 974, 975 [2017]; People v Clark, 129 AD3d 1, 11[2015], affd 28 NY3d 556 [2016]; People v Duffy, 119 AD3d 1231,1234 [2014], lv denied 24 NY3d 1043 [2014]; People v Gordon, 92AD3d 580, 581 [2012], lv denied 19 NY3d 864 [2012]; People vThaddies, 50 AD3d 1249, 1250 [2008], lv denied 10 NY3d 965[2008]). Under these circumstances, we will not second-guessdefense counsel’s plausible decision to avoid this “hazardoustactic” (People v DeGina, 72 NY2d at 777) and to instead focusexclusively on the issue of misidentification (see People vHoward, 22 NY3d at 401; People v Diaz, 149 AD3d at 975; People vDuffy, 119 AD3d at 1234; People v Gordon, 92 AD3d at 581; Peoplev Stokes, 25 AD3d 332, 333 [2006], lv denied 6 NY3d 839 [2006]).Further, while we agree that counsel should have requestedthat the jury instruction on the burglary charge reflect thetheory to which the prosecution had limited itself, this is notone of the “rare cases” in which a single error on the part ofcounsel “‘is so clear-cut, egregious and decisive that it [servedto] overshadow and taint the whole of the representation’” and,thus, deprive defendant of a fair trial (People v Keschner, 25NY3d 704, 724 [2015], quoting People v Blake, 24 NY3d 78, 81[2014]; see People v Caban, 5 NY3d 143, 152 [2005]; People vFauntleroy, 108 AD3d 885, 887 [2013], lv denied 21 NY3d 1073[2013]; People v Albanese, 38 AD3d 1015, 1018 [2007], lv denied 8NY3d 981 [2007]). Based upon the evidence adduced at trial, andconsidering that petit larceny was the only other crime charged,“there was not a reasonable likelihood that the error alonechanged the outcome of the case” (People v Gunney, 13 AD3d 980,983 [2004], lv denied 5 NY3d 789 [2005]; see People v Blake, 24NY3d 78, 81 [2014]; People v Albanese, 38 AD3d at 1018; People vNeal, 262 AD2d 1002, 1003 [1999], lv denied 93 NY2d 1023 [1999]).Defense counsel made cogent opening and closing statements,lodged appropriate objections, effectively cross-examined thePeople’s witnesses, pursued a viable, albeit unsuccessful,misidentification defense and otherwise zealously representeddefendant. Based upon our review of the record as a whole, weare satisfied that defendant received meaningful representation(see People v Blake, 24 NY3d at 81; People v Benevento, 91 NY2dat 712-713; People v Thompkins, 133 AD3d 899, 901 [2015]; Peoplev Wilson, 112 AD3d 1317, 1318 [2013], lv denied 23 NY3d 1069[2014]; People v Thomas, 33 AD3d 1053, 1055 [2006], lv denied 8NY3d 885 [2007]).Garry, P.J., McCarthy, Lynch and Devine, JJ., concur.ORDERED that the judgment is affirmed.ENTER:Robert D. MaybergerClerk of the Court
