Summary
In People v. Battle, 202 A.D.2d 1045, 609 N.Y.S.2d 716 (1994), the Supreme Court of New York considered the identical issue raised herein when interpreting their criminal mischief statute.
Summary of this case from Com. v. ZambelliOpinion
March 11, 1994
Appeal from the Supreme Court, Erie County, Rossetti, J.
Present — Balio, J.P., Lawton, Doerr, Davis and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: The proof is legally sufficient to support defendant's conviction for burglary in the third degree and criminal mischief in the fourth degree. Contrary to defendant's assertion, there is no requirement that the owner of the burglarized premises testify that he did not give defendant permission to enter. Evidence of entry into the tavern at 2:30 A.M. by breaking its front window, the acts committed inside the tavern, and the tavern manager's testimony that defendant was not given permission to enter the tavern, or to take money therefrom, provided the jury with sufficient proof to conclude reasonably that defendant was guilty of burglary and criminal mischief (see, People v. Borrero, 26 N.Y.2d 430, 436; People v. Stafford, 173 A.D.2d 233).
We also reject the contention that Supreme Court erred in summarily denying defendant's motion for a Wade hearing. A cab driver, the eyewitness to the underlying criminal acts, gave police who came to the scene a description of defendant and his confederates. The witness then drove around the block and saw the police holding two men, one of whom was defendant, in front of a hotel. The witness called to the police, "That's them, that's them, those are the guys I saw breaking in the bar." That identification, spontaneously made by the witness, was neither arranged nor participated in by the police. Therefore, a Wade hearing was not required (see, People v. Dawson, 185 A.D.2d 854, lv denied 80 N.Y.2d 974; People v. Thornton, 157 A.D.2d 758, 759, lv denied 76 N.Y.2d 744; People v. Robinson, 117 A.D.2d 826; People v. Blackman, 110 A.D.2d 596, 597). Defendant's contention that the court erred in failing to set forth "the reasons for its determination" pursuant to CPL 710.60 (6) is not preserved for review and we decline to reach it in the interest of justice (see, People v. Hunt, 187 A.D.2d 981, 982, lv denied 81 N.Y.2d 887).
Defendant's remaining contentions lack merit; Supreme Court did not err in its Sandoval ruling, and the sentence imposed is neither harsh nor excessive.