Opinion
November 13, 2000.
Appeal from Judgment of Niagara County Court, Fricano, J. — Burglary, 2nd Degree.
PRESENT: PIGOTT, JR., P. J., GREEN, HURLBUTT, SCUDDER AND BALIO, JJ.
Judgment unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him following a jury trial of burglary in the second degree (Penal Law § 140.25). At trial, the People presented evidence that the victim, upon returning home from a mini-mart around the corner, observed defendant emerging from the front door of the victim's first floor apartment carrying a television that belonged to the victim. The victim called 911 and restrained defendant until the police arrived.
By failing to move for dismissal on the ground that the People failed to prove that the apartment was a dwelling as defined in Penal Law § 140.00 (3), defendant failed to preserve for our review his contention that the proof is legally insufficient with respect to that element of the crime charged ( see, People v. Gray, 86 N.Y.2d 10, 19). Contrary to defendant's contention, the verdict is not against the weight of the evidence on the issue whether defendant possessed the requisite criminal intent at the time of the entry ( see, People v. Bleakley, 69 N.Y.2d 490, 495). Defendant's intent to commit a crime at the time of the entry may be inferred from the circumstances surrounding the entry ( see, People v. Barnes, 50 N.Y.2d 375, 381; People v. Wells, 270 A.D.2d 849, lv denied 95 N.Y.2d 806; People v. Price, 234 A.D.2d 978, lv denied 90 N.Y.2d 862).
County Court properly determined that defendant's statements to the arresting officers were admissible. The evidence adduced at the suppression hearing supports the court's determination that the statements were spontaneous and not the product of interrogation or its functional equivalent ( see, People v. Rivers, 56 N.Y.2d 476, 479, rearg denied 57 N.Y.2d 775; People v. Leon, 264 A.D.2d 784; People v. Engert, 263 A.D.2d 959, lv denied 93 N.Y.2d 1017).