The People, Respondent,v.Ronel Joseph, Appellant.

Brief

N.Y.September 14, 2016

APL-2015-00108 To be argued by DIANE N. PRINC (15 Minutes Requested) COVER Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - RONEL JOSEPH, Defendant-Appellant. BRIEF FOR RESPONDENT CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov CHRISTOPHER P. MARINELLI DIANE N. PRINC ASSISTANT DISTRICT ATTORNEYS Of Counsel NOVEMBER 13, 2015 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii INTRODUCTION................................................................................................................ 1 THE EVIDENCE AT TRIAL ............................................................................................ 4 The People’s Case ....................................................................................................... 4 The Defense Case ....................................................................................................... 7 PROCEEDINGS BEFORE THE APPELLATE DIVISION ...................................... 8 SUMMARY OF ARGUMENT ......................................................................................... 10 POINT I DEFENDANT WAS PROPERLY CONVICTED OF SECOND-DEGREE BURGLARY .......................................................... 13 POINT II THE EVIDENCE AT TRIAL OVERWHELMINGLY DEMONSTRATED DEFENDANT’S INTENT TO COMMIT A CRIME IN THE DELI BASEMENT ............................... 34 CONCLUSION ................................................................................................................... 42 TABLE OF AUTHORITIES STATE CASES People v. Barnes, 50 N.Y.2d 375 (1980) ................................................................................ 35 People v. Barney, 99 N.Y.2d 367 (2003) ................................................................................ 25 People v. Bueno, 18 N.Y.3d 160 (2011) ........................................................................... 35, 42 People v. Cabey, 85 N.Y.2d 417 (1995) ........................................................................... 35, 38 People v. Danielson, 9 N.Y.3d 342 (2007).............................................................................. 35 People v. Gaines, 74 N.Y.2d 358 (1989) ................................................................................ 35 People v. Gerard, 50 N.Y.2d 392 (1980) ................................................................................ 41 People v. Gordon, 23 N.Y.3d 643 (2014) .......................................................................... 34-35 People v. Grassi, 92 N.Y.2d 695 (1999)................................................................................. 41 People v. Hawkins, 11 N.Y.3d 484 (2008) ............................................................................ 41 People v. Johnson, 162 A.D.2d 267 (1st Dept. 1990), lv denied, 81 N.Y.2d 894 (1990) ...................................................................................... 20 People v. Joseph, 124 A.D.3d 437 (1st Dept. 2015) ........................ 3, 9-11, 23, 25-26, 34, 38 People v. Kennedy, 47 N.Y.2d 196 (1979) .............................................................................. 35 People v. Kims, 24 N.Y.3d 422 (2014) ............................................................................. 26, 38 People v. King, 61 N.Y.2d 550 (1984) ................................................................................... 26 People v. Mackey, 49 N.Y.2d 274 (1980) ......................................................................... 35, 37 People v. Mahboubian, 74 N.Y.2d 174 (1989) ................................................................. 37, 40 People v. McCray, 23 N.Y.3d 621 (2014) ..................... 9-11, 14-16, 19, 21-26, 28-29, 31-33 People v. McFarland, 106 A.D.3d 1129 (3d Dept. 2013), lv denied, 22 N.Y.3d 1140 (2014) .................................................................................... 26 People v. Quattlebaum, 91 N.Y.2d 744 (1998) ..................................................... 14, 20-21, 32 -ii- People v. Rohena, 186 A.D.2d 509 (1st Dept. 1992), lv denied, 81 N.Y.2d 794 (1993) ...................................................................................... 20 People v. Samuels, 99 N.Y.2d 20 (2002) ................................................................................ 35 Quinn v. People, 71 N.Y. 561 (1878) .................................. 9-11, 14-21, 23-25, 27-30, 32-33 STATE STATUTES Penal Law § 110 ...................................................................................................................... 1 Penal Law § 140.00 ............................................................................................................... 33 Penal Law § 140.00(2) .............................................................................................. 10, 16, 32 Penal Law § 140.00(3) .................................................................................................... 14, 16 Penal Law § 140.20 ................................................................................................................. 1 Penal Law § 140.25(2) ...................................................................................................... 1, 33 Penal Law § 205.10(2) ............................................................................................................ 1 Penal Law § 205.30 ................................................................................................................. 1 -iii- COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- RONEL JOSEPH, Defendant-Appellant. BRIEF FOR RESPONDENT INTRODUCTION By permission of the Honorable Sallie Manzanet-Daniels, Justice of the Appellate Division, First Department, defendant appeals from a January 13, 2015 order of that court. By that order, the Appellate Division affirmed a February 22, 2011 judgment of the Supreme Court, New York County (Laura A. Ward, J.), convicting defendant, after a jury trial, of one count each of Burglary in the Second Degree (Penal Law § 140.25[2]), Burglary in the Third Degree (Penal Law § 140.20), Resisting Arrest (Penal Law § 205.30), and Attempted Escape in the Second Degree (Penal Law §§ 110/205.10[2]). Defendant was sentenced, as a second violent felony offender, to an aggregate, determinate prison sentence of seven years, to be followed by five years of post-release supervision. On June 28, 2010, defendant burglarized the basement of the Greenleaf Deli on Amsterdam Avenue in the Upper West Side of Manhattan. The Deli was located on the first floor of a seven-story residential apartment building; all six floors above it contained residential apartments. Beneath the Deli was a basement, which was accessible via a ground-level entrance adjacent to the building. At about 8:30 p.m. that evening, Shorojit Roy was working at the cash register at the Deli, when he saw on surveillance video defendant entering the Deli basement with a flashlight and looking around at shelves containing store merchandise. Roy had never before seen defendant, and defendant had no permission to be in the basement. Roy closed the basement doors and locked defendant in, while another store employee called the police, who soon arrested defendant. While the police were arresting defendant, he struggled and fought them, leaving one officer with “banged up” knees and defendant with a broken arm. By New York County Indictment Number 3120/2010, filed on July 2, 2010, a grand jury charged defendant with one count each of second-degree and third-degree burglary, resisting arrest, and attempted second-degree escape. On December 1, 2010, defendant’s trial commenced before the Honorable Laura A. Ward and a jury. On December 6, 2010, the jury convicted defendant as charged, and on January 13, 2011, Justice Ward sentenced defendant to a seven-year determinate prison term and a five-year term of post-release supervision for the second-degree burglary count, an indeterminate prison term of from three and a half to seven years for third-degree -2- burglary count, and a one-year definite jail term for each the resisting arrest and attempted escape counts. The court imposed all the sentences to run concurrently, for an aggregate, determinate prison term of seven years, to be followed by five years of post-release supervision. On appeal to the Appellate Division, defendant challenged his burglary convictions as not supported by legally sufficient evidence and against the weight of the evidence. He contended that the Deli basement was not a dwelling, and that the People failed to prove his intent to commit a crime in the basement. On January 13, 2015, a majority of the Appellate Division affirmed defendant’s conviction, concluding that basement was a dwelling and that the evidence proved defendant’s intent beyond a reasonable doubt. People v. Joseph, 124 A.D.3d 437 (1st Dept. 2015). Justice Manzanet-Daniels, joined by the Honorable Diane T. Renwick, dissented with respect to defendant’s second-degree burglary conviction, concluding that, in fact, the Deli basement was not a dwelling. Id. at 440-42 (Manzanet-Daniels, J., dissenting). Defendant sought leave to appeal the Appellate Division’s decision to this Court. On April 21, 2015, Justice Manzanet-Daniels granted defendant’s application. On appeal to this Court, defendant again claims that his burglary convictions were not based on legally sufficient evidence.1 1 On May 7, 2015, this Court, on its own motion, set this appeal for review by the alternative procedure set forth in section 500.11 of the Court of Appeals Rules of Practice. -3- (Continued…) THE EVIDENCE AT TRIAL The People’s Case During the evening of June 28, 2010, SHOROJIT ROY was working at the Greenleaf Deli, located Amsterdam Avenue in the Upper West Side of Manhattan (Roy: A322, 329-30; see also Police Officer BRADLEY GORE: A262).2 The Deli sold assorted merchandise including fast food, soft drinks, beer, cigarettes, and lotto tickets; advertisements for these items adorned the front of the Deli and were visible from the sidewalk in front (Roy: A324; People’s Exs. 1, 2 [photographs]). The Deli was located on the first floor of the building, and the six floors above contained “residential” apartments (Gore: A262-63; Roy: A324). There was only one public entrance to the Deli on Amsterdam Avenue (Roy: A324-25; People’s Ex. 2). Above that entrance hung a fire escape and a ladder; residential apartment windows were immediately above the Deli (People’s Exs. 1, 2). Underneath the Deli was a basement where Deli employees stored soft drinks and water (Roy: A326; People’s Exs. 4, 5, 6 [photographs]). The only entrance to the basement was through two doors located on the sidewalk, adjacent to the Deli and beside Amsterdam Avenue. Residential apartment windows were one story above this By order dated July 20, 2015, this Court terminated its review pursuant to that alternative procedure and set the case for the normal course of briefing and argument. 2 Parenthetical citations preceded by “A” are to defendant’s appendix on appeal. At trial, Roy testified through a Bengali interpreter (Roy: A321). -4- ______________________ (…Continued) entrance (Gore: A269; Roy: A325-26; People’s Exs. 1, 2, 3 [photographs]). Beneath the doors, a staircase descended into the basement. Only Deli employees were allowed there (Roy: A329; People’s Exs. 3, 4). The Deli had a security camera in the basement, which displayed on a monitor near the cash register inside the Deli; a CD drive next to the cash register recorded the camera’s display (Roy: A332-34, 337). At approximately 8:30 p.m. on June 28th, Roy was working at the cash register when he saw on the surveillance monitor defendant entering the open doors to the Deli basement with a flashlight in his hand (Roy: A332; People’s Ex. 10 [surveillance video]). Although the doors were normally kept closed, they had been left open after an employee had retrieved some bottles of water earlier (Roy: A332, 348-49). On the screen, Roy watched defendant walk around the basement and shine a flashlight at the shelves holding store merchandise (Roy: A332, 349; People’s Ex. 10). Roy had never seen defendant before, and defendant had no permission to be inside the basement (Roy: A334-35). Roy went outside, closed the basement doors, and locked defendant in the basement (Roy: A335). In response, defendant yelled, “Open the door,” and, “It’s very hot in here”; he said nothing about a lost cellphone (Roy: A349). Roy returned to the store, and his co-worker called 911 (Roy: A335-36). A few minutes later, at about 9:00 p.m., Police Officers BRADLEY GORE and ALBERTO NATAL arrived at the Deli. Roy showed them a surveillance video of defendant in the basement, pacing back and forth with a flashlight. Roy told the officers that defendant had no permission to be in the basement (Gore: A261-66; -5- Natal: A303-05; Roy: A336; People’s Exs. 8 [photograph of surveillance monitor], 10). The officers and Roy went outside and unlocked the Deli basement doors. Officers Gore and Natal saw defendant inside the basement and asked him to climb out (Gore: A269-73; Natal: A305-08). The officers next arrested defendant. Once he was handcuffed, defendant exclaimed, “I’m not going to jail” (Gore: A273; Natal: A307- 08). The officers escorted defendant to their police car, but when Gore attempted to put defendant inside, defendant tried to “bolt[,]”running away and declaring that he was “not going to jail” (Gore: A274-76; Natal: A309-11). Defendant dragged Gore the distance of about two car lengths in the midst of traffic on Amsterdam Avenue, and then defendant and Gore fell to the street (Gore: A276-81; Natal: A311-13). On the ground, defendant continued to fight Gore, kicking and wrestling with a “lot of energy [ ] in the middle of a six-lane highway with traffic” (Gore: A279; Natal: A314). Gore sprayed defendant with “Mace” to subdue him (Gore: A279). From the struggle, Gore suffered from “banged up” and “sore” knees “for like a week.” Defendant’s arm was broken (Gore: A280). After defendant was secured, Gore searched him but did not locate a flashlight or any property from the Greenleaf Deli. Gore did, however, recover from defendant a cellphone (Gore: A282, 289-93, 296, 298-99).3 A few days later, Gore returned to 3 Although Officer Gore recalled that he recovered the cellphone from defendant, he did not write on the related property voucher from where he recovered the phone. Gore -6- (Continued…) the Deli and searched the basement, where he located a blue, three-and-a-half-inch- long flashlight inside a box (Gore: A282-84, 286, 288-89, 299; Roy: A344-45; People’s Ex. 11 [flashlight]).4 The Greenleaf Deli did not sell that model of flashlight (Roy: A344). The Defense Case During the evening of June 28, 2010, defendant RONEL JOSEPH was walking on the sidewalk next to the Greenleaf Deli. While passing the Deli, defendant took his cellphone out of his pocket, but the phone “by some chance just fell” into the open basement doors next to the Deli (Joseph: A360-62, 369-75, 381). Although he later admitted at trial that he should have gone inside the Deli first, defendant immediately walked down the stairs into the basement to look for his phone. The basement was dark, so defendant turned on the flashlight that he had on his keychain and started looking around on the floor (Joseph: A362, 375-77).5 Defendant “didn’t vouchered the phone on June 29, 2010, just a few hours after defendant’s arrest (Gore: A289-93, 298-99). 4 At trial, Roy recalled that Deli employees had initially located the flashlight a day or so after June 28, 2010, when they came down to the basement to retrieve coffee cups from the box (Roy: A344). 5 Defendant denied that the flashlight Officer Gore recovered from the basement was his (Gore: A377). -7- ______________________ (…Continued) really look at the shelves.” Despite searching for several minutes, defendant was never able to find his phone (Joseph: A363, 377, 379-81).6 After about three or four minutes, defendant heard the basement doors being shut and locked. As he walked to the doors, a man asked him, “What are you doing down there?” Defendant replied that he was looking for his phone. After the man locked defendant inside, defendant looked for another exit, but was unable to find one (Joseph: A361-64, 378-81). Eventually, the doors were opened, and two police officers arrested and handcuffed defendant (Joseph: A364, 382-83). As they walked to the police car, defendant tried to explain that he had entered the basement to “retrieve [his] phone that fell down” the stairs. In response, defendant and one of the officers “got into a little argument.” The officer punched defendant twice in the face and then “pepper-sprayed” and “tackled” defendant. On the ground, the officer “twist[ed]” defendant’s “arm up . . . towards [his] neck” (Joseph: A365-67, 384-85, 387-89). Defendant later received treatment for his arm at Roosevelt Hospital (Joseph: A367-68). PROCEEDINGS BEFORE THE APPELLATE DIVISION On appeal to the Appellate Division, defendant claimed that his second-degree and third-degree burglary convictions were not supported by legally sufficient 6 At trial, defendant testified that “Nicholas Furse” picked up defendant’s cellphone at the police station the same night of defendant’s arrest; Officer Gore “said he found it behind the stairs” (Joseph: A390). -8- evidence and were against the weight of the evidence. Specifically, with respect to the second-degree burglary count charging him with burglary of a dwelling, defendant argued that the Deli basement was not a dwelling. With respect to both burglary counts, defendant argued that the People failed to prove his intent to commit a crime in the basement. On January 13, 2015, a majority of the Appellate Division affirmed defendant’s conviction. Joseph, 124 A.D.3d 437. First, with respect to the second-degree burglary conviction, the majority concluded that defendant had burglarized a dwelling, because he “ent[ered] into the basement of the store located on the ground floor of a small apartment building.” Joseph, 124 A.D.3d at 438. The majority observed that this Court’s recent decision in People v. McCray, 23 N.Y.3d 621 (2014), “reaffirmed the rule, established in Quinn v. People (71 NY 561 [1878]), that ‘if a building contains a dwelling, a burglary committed in any part of that building is the burglary of a dwelling ….’” Joseph, 124 A.D.3d at 438. The Appellate Division recognized that there is a narrow exception to this principle “where the building is large and the crime is committed in a place so remote and inaccessible from the living quarters that the special dangers inherent in the burglary of a dwelling do not exist.’” Id. (quoting McCray, 23 N.Y.3d at 624). However, because the building at issue in this case is not “large,” the majority concluded that the exception to the normal rule for burglary of a dwelling did not apply. Id. -9- Next, the Appellate Division unanimously rejected defendant’s “challenges [to] the sufficiency and weight of the evidence supporting both of his burglary convictions with respect to the element of intent.” Joseph, 124 A.D.3d at 440. In particular, the court held that the evidence supported the jury’s determination that defendant entered the basement with the intent to commit a crime therein, and that the “jury reasonably rejected defendant’s implausible explanation for his behavior.” Id. In a dissenting opinion joined by the Justice Renwick, Justice Manzanet- Daniels disagreed with the majority’s holding with respect to defendant’s second- degree burglary conviction. In particular, Justice Manzanet-Daniels concluded that the Deli basement into which defendant had entered could not constitute a dwelling, because it was too remote and inaccessible from the apartments above. Joseph, 124 A.D.3d at 440-42 (Manzanet-Daniels, J., dissenting). SUMMARY OF ARGUMENT For more than a century, this Court has recognized a “general rule” for burglary of a dwelling: “[I]f a building contains a dwelling, a burglary committed in any part of that building is the burglary of a dwelling . . . .” McCray, 23 N.Y.3d at 624; see generally Quinn, 71 N.Y. 561. Indeed, consistent with that general rule, the burglary statute explicitly provides with respect to multiuse buildings, “Where a building consists of two or more units separately secured or occupied, each unit shall be deemed both a separate building in itself and a part of the main building.” Penal Law § 140.00(2). As the Court has explained, this general rule exists because the “midnight -10- terror” to which the crime of burglary of a dwelling is directed exists whenever the place burglarized is in “close congruity” to the place of repose, even if there is no “instant access” between them. Quinn, 71 N.Y. at 573; see also McCray, 23 N.Y.3d at 627. Although this Court has recognized a limited exception to this general rule in “large” buildings where the crime is committed in a place so “remote and inaccessible” from the place of repose that the “special dangers” of midnight terror “do not exist[,]” it has applied this exception narrowly. Indeed, the exception should be applied only where there is “virtually no risk that the people living in the apartments will even be conscious of [the burglar’s] presence.” See McCray, 23 N.Y.3d at 624, 627-29; Quinn, 71 N.Y. 573-74. Applying this well-settled law, the Appellate Division in this case concluded that the seven-story residential apartment building at issue was not “‘large’ within the meaning of McCray,” and, given that the apartments were located “immediately above” the Deli, it could not be said that “there was ‘virtually no risk’ that people living in the apartments would not ‘even be conscious’ of the presence of a burglar who entered the basement through the sidewalk doors.” Joseph, 124 A.D.3d at 440 (quoting McCray, 23 N.Y.3d at 627). Thus, it concluded that defendant’s entry into the Deli basement in that building was the burglary of a dwelling. This decision was correct. As the trial evidence showed, when defendant entered the Deli basement through the sidewalk entrance, he stood just one story below the residents’ apartment windows, thus threatening alarm to the residents in close contiguity to him. -11- Moreover, if the “exception” to the general rule were to apply to the seven-story residential apartment building at issue in this case, then the exception would become the general rule, for few primarily residential, multiuse buildings would be small enough to qualify for the “general” rule. Such a holding would be inconsistent with this Court’s long-standing precedent, with the plain meaning of the statue, and with the policy behind the enhanced penalty for burglary of a dwelling. Thus, the Appellate Division’s holding should be affirmed. Finally, contrary to defendant’s claims, the evidence at trial proved his intent to commit a crime inside the Deli basement beyond a reasonable doubt. The evidence demonstrated that defendant entered the off-limits but inadvertently open Deli basement—the outside of which was adorned with colorful advertisements for the Deli’s merchandise—looked around with his flashlight at the merchandise inside, and then gave a demonstrably false reason for entering the basement. Given this evidence, the jury’s finding that defendant entered the basement with criminal intent was clearly reasonable. -12- POINT I DEFENDANT WAS PROPERLY CONVICTED OF SECOND-DEGREE BURGLARY (Answering Defendant’s Brief, Point I). At trial, defendant was convicted of second-degree burglary for his unlawful entry into the basement of a seven-story residential apartment building. On appeal, defendant contends that the basement he entered was not a dwelling, because there was no “connection, internal or external” between the basement and the apartments, and because his entrance purportedly posed “no enhanced danger” to the residents just above him (Defendant’s Brief [“DB”] at 18; see generally id. at 17-33). According to defendant, the lower courts—in determining that the basement was a dwelling because six stories of residential apartments stood above it—applied an unduly “strict reading of the burglary statute” that is contrary to this Court’s precedent and will result in an “overbroad” application of the statute (DB: 17-18). Defendant’s arguments are incorrect. The lower courts’ conclusion that the Deli basement was a dwelling was consistent with the plain meaning of the burglary statute, this Court’s well-settled precedent, and the policy informing the heightened penalty for burglary of a dwelling.7 Indeed, by unlawfully entering the basement in 7 As defendant describes (DB: 12-13), his trial counsel moved to dismiss the second- degree burglary charge at the close of the People’s evidence, essentially arguing that the basement was not a “dwelling” given the lack of connection between it and the apartments above. The court denied the motion, concluding that the basement clearly fell within the plain meaning of the burglary statute as well as the case law interpreting that statute (Proceedings: A352-54). -13- (Continued…) “close contiguity” to the apartment residents immediately above, defendant was “likely to cause alarm and to lead to personal violence, and so endanger human life.” See Quinn, 71 N.Y. at 567, 573. A. The burglary statute defines a “dwelling” as a “building which is usually occupied by a person lodging therein at night.” Penal law § 140.00(3). With respect to buildings with separate units, the statute provides that “[w]here a building consists of two or more units separately secured or occupied, each unit shall be deemed both a separate building in itself and a part of the main building.” Id. § 140.00(2). As this Court explicitly held when interpreting the statute, “Generally, if a building contains a dwelling, a burglary committed in any part of that building is the burglary of a dwelling.” McCray, 23 N.Y.3d at 624 (emphasis added); Quinn, 71 N.Y. at 573; accord People v. Quattlebaum, 91 N.Y.2d 744, 747 (1998) (“a ground floor commercial space ‘under the same roof’ of a building otherwise used for residences [is], in fact, a dwelling”). This is true even when there is no “internal communication” between the location burglarized and the residential areas of the building, because, in places “in In its final instructions to the jury, the court read for the jury definitions of “building” and “dwelling” tracking the definitions set forth in burglary statute, the relevant portions of which are provided in text. It then charged the jury that to find defendant guilty of second degree burglary, the jury had to find beyond a reasonable doubt that (1) defendant unlawfully entered the building at Amsterdam Avenue, (2) knowingly and (3) with intent to commit a crime inside the building, and that “the building was a dwelling” (Jury Charge: A461-63). -14- ______________________ (…Continued) close congruity” to places of repose, the risk of “midnight terror” can arise even if there is no instant access between them. Quinn, 71 N.Y. at 573; see also McCray, 23 N.Y.3d at 627 (dangers created by burglary can be present even if the “place of the burglary and the sleeping quarters are not instantly accessible to each other”). Certainly, this Court has recognized an “exception” to the general rule. Specifically, “where the building is large and the crime is committed in a place so remote and inaccessible from the living quarters that the special dangers inherent in the burglary of a dwelling do not exist[,]” the defendant did not burglarize a dwelling. McCray, 23 N.Y.3d at 624 (emphasis added); see also id. at 628-29; Quinn, 71 N.Y. 573- 74 (discussing how, “in a large building,” dwelling-houses may become “so severed” from the rest of the building that a defendant’s entry into the commercial space might not constitute burglary of a dwelling). As this Court explained, it created this “common-sense limitation” on the general rule that “burglary of a dwelling occurs whenever a burglar enters a place within the same four outer walls, and under the same roof as a room used for sleeping at night,” because, “[i]n large buildings, situations can arise in which the general rule will not be applied because it does not make sense.” McCray, 23 N.Y.3d at 627-29. Applying these principles here, it is clear that the Deli basement into which defendant unlawfully entered was a dwelling. As the record undisputedly demonstrates, the Deli and its basement were contained in a seven-story residential apartment building; the Deli was located on the first floor, and all six stories above it -15- held apartments (Gore: A262-63; Roy: A324). Those residential apartments were unquestionably dwellings. See Penal Law § 140.00(3). Thus, because the basement was under the same roof and within the same four walls as the dwellings above, the basement too was a dwelling under the plain language of the burglary statute, as well as this Court’s clear precedent. See Penal Law §§ 140.00(2); McCray, 23 N.Y. at 624; Quinn, 71 N.Y. at 573. B. On appeal, defendant argues that the exception to the general rule must apply in this case, and that the Appellate Division erred in holding that the exception only applies to “large” buildings. According to him, “[n]either McCray nor its predecessor, Quinn, support a finding that only ‘large’ buildings may be exempted from the reach of the second-degree burglary statue.” As he sees it, these cases hold that the exception applies whenever the place burglarized is “inaccessible” from the dwelling-houses (see DB: 17-18, 23). To the contrary, in decisions separated by more than a century discussing materially similar definitions of a dwelling, this Court has explicitly provided that the general rule for burglary of a dwelling applies except in rare cases in which the building is large, and the place burglarized is so “remote and inaccessible,” that a defendant’s entry poses “virtually no risk” of alarm to residents. Similarly, the Court has further held consistently that this is the case even when there is no direct access from the place burglarized to the residential portions of the building. McCray, 23 N.Y.3d at 627; Quinn, 71 N.Y. at 573. -16- In Quinn, this Court confronted the question of whether the defendant burglarized a dwelling when he broke into a store on the lower level of a building that had residences on the upper levels. Quinn, 71 N.Y. at 564-65. There was no “internal communication” between the store and the residences on the upper floors, and to get from the store to the residences, it was necessary to go outside into a yard and then up an external set of stairs. Id. Notwithstanding the lack of direct access to the residences from the store, the Court held that the store was a dwelling. Id. at 573. In that case, the Court was interpreting the crime of first-degree burglary under the Revised Statutes, which provided that “[n]o building shall be deemed a dwelling- house, or any part of it a dwelling house, … unless the same be joined to, immediately connected with, and part of a dwelling-house.” Quinn, 71 N.Y. at 570 (citing 2 R.S. p. 669, § 16). In interpreting this provision, the Court noted that “the definition of the crime of burglary in the first degree, given by the Revised Statutes” did not “materially differ” from the common-law definition of the crime. Id. at 563, 565. Accordingly, the Court reviewed the common law to determine whether the defendant’s entry into the shop in that case would constitute burglary of a dwelling under that precedent. When reviewing case law from England, New York, and other states, the Court found numerous cases in which, despite a lack of communication between a shop and a dwelling under the same roof, entry into the shop was held to be burglary of a dwelling. Quinn, 71 N.Y. at 566-73. For instance, in the Case of Gibson, Mutton & Wiggs, Leach’s Cr. Cases, 320, the defendants broke into a “shop built close to a -17- dwelling house” but without “internal communication between them”; the shop and dwelling house shared a yard that was enclosed by a brick wall, but the only entrance to the shop was “from the outside.” Quinn, 71 N.Y. at 566. Despite the lack of direct access to the dwelling from the shop, the “shop was considered to be a part of the dwelling house, being within the same building and the same roof.” Id. Indeed, the Court found “no decision” in which the “room or building entered, was under the same roof and within the same four walls” where “it was not held to be part of the dwelling-house within the statutory or common-law definition of burglary.” Id. at 573. In fact, under the common law, even separate buildings “such as warehouses, barns, stables, cow-houses, dairy-houses—though not under the same roof or joining contiguous to the house” could be deemed dwellings, provided they were “within the curtilage, or same common fence with the dwelling-house itself.” Id. at 569.8 The Court further concluded that, in enacting the burglary provision, the Legislature “did not mean” to exclude from the provision’s purview “a room, or part of the same structure within the dwelling house, within the same four outer walls, and beneath the same roof, through which there was no internal communication between the room entered and the room of the sleeper.” Quinn, 71 N.Y. at 571-72. Rather, by creating different degrees of burglary classified “according to their atrocity,” the 8 By contrast, when the shop entered was “on the same lot with” and “twenty feet from” the dwelling-house, but “not included by the same fence, nor connected by a fence,” the shop was not considered a dwelling. Quinn, 71 N.Y. 566-67 (discussing People v. Parker, 4 J.R., 423, from the Johnson’s Reports). -18- Legislature sought to exclude from the statute’s purview only the separate and unconnected “out-houses” recognized under the common law as dwellings when they were within the same curtilage or fence as the dwelling-house. Id. at 569-72. Thus, the Revised Statutes provided that an uninhabited building must be “joined to, immediately connected with, and part of a dwelling-house” to be considered a dwelling. Id. at 571. Applying this well-settled law, the Court rejected the defendant’s argument that the store into which he had broken was not a dwelling because the shop lacked connection or access to the apartments above; rather, the store was a dwelling, because it was “within the same outer walls and under the same roof” as the dwellings above. Id. at 568, 573. Put another way, because the store was “a part” of “a whole building in other parts of which there were persons dwelling,” this made the store a “dwelling-house” too, even though the store was not “connected with the rest of the building by an internal, [e]nclosed, or covered communication.” Id. at 573; see also McCray, 23 N.Y.3d at 626-27 (citing Quinn for the principle that the dangers posed by burglary of a dwelling “are created in significant degree when the crime is committed ‘in close contiguity’ with a ‘place of repose’ even though the place of the burglary and the sleeping quarters are not instantly accessible to each other”). This is so because the dangers caused by burglary of a dwelling—“the midnight terror excited”—“may arise, when the place entered is in close contiguity” with the place of repose, “though -19- the former has no relation to the latter by reason of domestic use or adaptation.” Quinn, 71 N.Y. at 567. After reaching this conclusion, this Court suggested one potential narrow exception to a straightforward application of the statute. The Court recognized that situations may arise in which it would make no sense to apply the general rule. As the Court explained, it could envision how, “in a large building,” “a part of a dwelling- house may be so severed from the rest of it, . . . as to be no longer a place in which burglary” of a dwelling “can be committed.” Id. at 573-74. But, the Court saw no cause to apply such an exception to the building at issue in Quinn. See id. The Court did not address the issue at any length again for more than a century until People v. Quattlebaum. Quattlebaum addressed the current second-degree burglary statute of the Penal Law and ultimately turned on whether any part of a seven-story school building could be considered a dwelling simply because one office contained a bed that, on “rare[ ]” occasions, was used overnight. 91 N.Y.2d at 746-49. Nonetheless, the Court reaffirmed the holding in Quinn that burglary of any part of a building with a dwelling constitutes burglary of a dwelling, citing with approval other decisions that were in line with Quinn’s holding. Quattelbaum, 91 N.Y.2d at 747 (citing People v. Rohena, 186 A.D.2d 509, 511 (1st Dept. 1992), lv denied, 81 N.Y.2d 794 (1993), which held that a non-occupied doctor’s office in an apartment building near Central Park in Manhattan was a dwelling; and People v. Johnson, 162 A.D.2d 267, 276 (1st Dept. 1990), lv denied, 81 N.Y.2d 894 (1990), which held that a music shop on the -20- ground and second floors of a five-story “residential brownstone situated on West 69th Street in Manhattan” was a dwelling). Indeed, this Court explicitly noted how, in Quinn, the “fact that the first floor commercial space did not have ‘internal communication’ with the upper floor residences was immaterial in light of the statute which strongly suggested that a ground floor commercial space ‘under the same roof’ of a building otherwise used for residences was, in fact, a dwelling.” Quattlebaum, 91 N.Y.2d at 747. As this Court explained, “Wrongful entry into such a building also could have caused the very harm that the increased penalty for burglary of a dwelling was designed to prevent, namely ‘midnight terror’ and the ‘danger to human life, growing out of the attempt to defend property from depredation.” Id. (citing Quinn, 71 N.Y. at 567). Finally, in McCray, the Court squarely addressed the exception it had suggested in Quinn. The Court began its decision by “reaffirm[ing]” Quinn’s “general rule” for burglary of a dwelling, as well as the exception for “large” buildings. McCray, 23 N.Y.3d at 624, 629. But, in McCray, this Court was confronted with a very large building—a midtown Manhattan building standing more than seventeen stories and containing numerous businesses, including a Hilton hotel and a Madame Tussauds Wax Museum. McCray, 23 N.Y.3d at 624. The defendant in that case had broken into two non-residential spaces within the building: (1) a locker room in the Hilton hotel and (2) the wax museum, both of which were several stories removed from the guest room floors. See id. at 624-25. In fact, while the guest rooms were on the seventeenth -21- floor and above, the locker room was on the mezzanine “a few steps” above the fourteenth floor, and the wax museum did “not reach[ ] the level of the” fourteenth floor. Id. Accordingly, in the case of this “large” building, the Court was tasked with considering whether it would “make sense” to apply the general rule for burglary of a dwelling, or the exception to that rule. See id. at 629-30. Applying these principles, the Court concluded that, notwithstanding the great size of the building at issue, the non-residential spaces into which defendant had broken constituted dwellings. McCray, 23 N.Y.3d at 629-30. In reaching this determination, the Court noted that, despite the great distance between the rooms where the hotel guests slept and the non-residential spaces into which defendant had entered, there were internal staircases connecting both of the commercial spaces with the guest room floors. Id. at 630. With respect to the hotel locker room, an internal staircase connected that room to “all of the floors of the hotel.” Id. In addition, “[t]hough the burglary” of the wax museum “was not physically close to the guest rooms,” the rooms were “eas[y] to access” from the wax museum via the internal staircase. Id. Thus, even though the building at issue in McCray was exactly the type of vary large building envisioned by this Court in Quinn—i.e., one so large that a burglary of one part “may create virtually no risk” of alarm to the residents in other parts—this Court nevertheless concluded that defendant’s entry into the locker room and wax museum constituted burglaries of dwellings, as there were internal staircases -22- connecting these non-residential areas with the hotel guest rooms above. See McCray, 23 N.Y.3d at 627, 629-30. The Court reiterated what it had stated in Quinn, that typically there need not be “internal connection” or instant accessibility between the residence and the space burglarized for the space burglarized to be a considered a dwelling. Id. at 626-27. But in McCray, because the building was so large that it might not otherwise have made sense to apply the general rule for burglary of a dwelling, the Court was required to consider the accessibility of the guest rooms from the places the defendant burglarized. See id. at 629-30 (“Though the burglary [of the wax museum] was not physically close to the guest rooms of the hotel, the ease of access from one place to another is at least equally important.”). And after finding that they were indeed accessible, this Court determined that it did make sense in that case to conclude that defendant had burglarized dwellings. See id. C. Here, by contrast, and as the Appellate Division concluded, the building at issue was quite simply not “large.” See Joseph, 124 A.D.3d at 440. Rather, it was a seven-story residential apartment building that contained only one commercial unit on the first floor, the Greenleaf Deli, and six stories of residential apartments above (see Gore: 262-63; Roy: 323-34; People’s Ex. 1 [photograph]). Indeed, the building at issue was the quintessential multiuse, but primarily residential apartment building; like countless other such buildings in this state, it contained several stories of apartments and one business on the first floor. Additionally, in contrast to the seventeen-plus- -23- story, multiuse building in McCray, and the even larger skyscrapers found in Manhattan, the building at issue here was relatively small, and almost completely residential. Thus, if the “exception” were applied to this building, then the exception would swallow the “general” rule for burglary of a dwelling, for few multiuse, multistory buildings would be sufficiently small to qualify for the “general” rule. But, that is not what the Court held in Quinn and McCray. Instead, this Court emphasized that the “general” rule applies, and an exception exists only in cases with “large” buildings in which the place burglarized is so “remote and inaccessible” from the place of repose that there is “virtually no risk” that the residents would even be aware of the burglary. McCray, 23 N.Y.3d at 624; Quinn, 71 N.Y. at 573-74. Moreover, the building at issue here is almost identical to the building at issue in Quinn, to which this Court unhesitatingly applied the general rule for burglary of a dwelling. See Quinn, 71 N.Y. at 573. Both buildings contained commercial spaces on the lower levels, and residential apartments on the floors above. Id. at 564-65. Additionally, in both buildings, there “was no internal communication” between the commercial units below and the apartments above. Id. at 564, 573. Nevertheless, the Court applied the general rule and held that, because the store defendant burglarized was under the same roof and within the same four walls as the residences above, the defendant had burglarized a dwelling. Id. at 573; see also McCray, 23 N.Y.3d at 626 (in Quinn, this Court “held the shop to be part of the ‘dwelling-house’ despite the absence of internal communication with the place where people slept, because it was ‘within -24- the same four outer walls, and under the same roof’”). If the Court saw no cause to apply the exception for large buildings to the building at issue in Quinn, surely there is no reason to apply it to the almost identical building at issue here. Indeed, given the relatively small size of the building at issue in this case, as well as the fact that the residential apartments were located “immediately above the store,” Joseph, 124 A.D.3d at 440, it is clear that entry into the Deli basement had the potential “to cause alarm” that could “lead to personal violence and so endanger human life” notwithstanding that “there was no internal communication” between them. See Quinn, 71 N.Y. at 573. After all, the burglary statute does not require the People to prove that a defendant actually caused harm or excited terror in the residents of the building into which he entered. Rather, to constitute burglary of a dwelling, it is enough that the “midnight terror” to which the statute is directed “may arise” given the “close contiguity” of the place burglarized with the place of repose, “even though the former has no relation to the latter by reason of domestic use or adaptation” and even without “internal communication” between them. Id. at 567, 573; see also McCray, 23 N.Y.3d at 627 (burglary of a building containing a dwelling is “more likely to end in violence” even if the place of repose is not instantly accessible from the place burglarized); cf. People v. Barney, 99 N.Y.2d 367 (2003) (defendant’s entry into a home solely occupied by the decedent was the burglary of a dwelling; although the sole occupant was deceased, the residence was “fully furnished with working utilities and could have been occupied overnight”). Thus, the exception to -25- the general rule applies only in cases where the building is so “large” and the places of repose are so “remote and inaccessible” that the burglary poses “virtually no risk” that the residents would even by conscious of the burglary. McCray, 24 N.Y.3d at 627. In this case, as the Appellate Division observed, because the seven-story resident apartment building at issue was not “large” within the meaning of McCray, “it cannot be said that there was ‘virtually no risk’ that the people living in the apartments [above] would not ‘even be conscious’” of defendant’s presence below them. Joseph, 124 A.D.3d at 440 (quoting McCray, 23 N.Y.3d at 627). Indeed, in contrast to the “large” buildings with “remote and inaccessible” residences envisioned by this Court when discussing the exception to the general rule, see McCray, 23 N.Y.3d at 627, the building at issue in this case is small enough that it is entirely conceivable that the residents above the Deli basement would be “conscious” of an unlawful entry into the basement, and that such entry could pose danger to them. Here, the entrance to the Deli basement was adjacent to the front of the building, just one story below the residential apartments. Under this Court’s well- settled precedent, the moment defendant, with the requisite intent, entered the basement stairway—while still just a floor below the residents above him—he completed the burglary. See People v. King, 61 N.Y.2d 550, 555 (1984) (the entry element of burglary is satisfied “when a person intrudes within a building, no matter how slightly, with any part of his [ ] body”); accord People v. McFarland, 106 A.D.3d 1129 (3d Dept. 2013) (affirming conviction for burglary of a dwelling when defendant -26- kicked in the window to an apartment building), lv denied, 22 N.Y.3d 1140 (2014). Given the close proximity between the Deli basement and the residences above, there was more than a slight risk that a burglar’s entry into the basement would excite “midnight terror” in the residences above, notwithstanding the lack of instant access between them. See Quinn, 71 N.Y. at 567. Indeed, it is for this very reason—the close proximity—that the Court concluded in Quinn that the defendant’s entry into the store of an almost identical building made “likely” the sort of midnight terror and “personal violence” justifying the higher penalty for burglary of a dwelling, even though there was no instant access to the residents from the store. See id. at 573. As defendant himself acknowledges (DB: 25), it is possible that that a resident of the building could encounter a burglar who had entered the Deli basement on the sidewalk; for instance, a resident on the second floor above the entrance to the basement could be alerted to a burglar’s presence just one story beneath him and decide to confront the burglar (see People’s Ex. 1 [photograph]). According to defendant, however, this is not a sufficient danger to the residents above, because here—assuming the resident did not enter the basement or the stairs leading to the basement—the burglar could only encounter the resident on the public sidewalk. Indeed, defendant seeks to contrast the danger in this case with the danger in Quinn by arguing that the residents in Quinn were at greater danger because they could have encountered that burglar in the yard (DB: 24). But this Court has never recognized a public/private distinction in the dangers posed by a burglar into a multiuse residential -27- apartment building. Rather, the Court—by holding that unlawful entry into any part of a building “within the same outer walls and under the same roof” as residences constitutes burglary of a dwelling—recognized that a burglar’s entry into a portion of a resident’s building, even if non-residential and unconnected to the residences, inherently poses a danger to any resident in relatively close physical proximity. Quinn, 71 N.Y. at 573. Simply put, defendant’s entrance into a basement in close proximity to residential apartments represented a “frightening intrusion” that might foreseeably have “end[ed] in violence”; whether that violence played out in a private yard or on a public street is irrelevant. See McCray, 23 N.Y.3d at 627. D. Defendant disagrees. As he sees it, this Court did not limit the exception to “large” buildings, and the Appellate Division erroneously “latched” on to a single sentence in McCray as justification for its holding (see, e.g., DB: 23, 28). Defendant is just wrong. As discussed, in both Quinn and McCray, this Court repeatedly and expressly framed its discussion of the exception in terms of “large” buildings. McCray, 23 N.Y.3d at 624; Quinn, 71 N.Y. at 573-74. And such a limitation makes perfect sense. After all, as explained above, the Court in Quinn recognized that the dangers of “midnight terror” are inherently posed anytime a defendant breaks into a part of a multiuse building containing residences. This is because, even if there is no instant access or inter-connection between the place burglarized and the place of repose, the physical proximity—“within the same outer walls and under the same roof”—makes -28- “alarm” and “personal violence” more “likely,” even if not actually created in a specific case. See Quinn, 71 N.Y. at 567, 573. Thus, defendant’s focus on a burglary’s direct access to residents and the actual danger he poses in a particular case (e.g., DB: 22-23) is misplaced. After all, as the Court in McCray explained, the exception to this general rule only arises in those cases where the place of response is so remote and inaccessible from the place burglarized that there is “virtually no risk that the people living in the apartments will even be conscious of [the burglar’s] presence.” 23 N.Y.3d at 627. Thus, in a “large” building such as the greater-than-seventeen-story building containing an entire hotel and wax museum in McCray, where there is no physical proximity, there is “virtually no risk” of danger to the residents if the burglar does not actually come close to the residences or have direct access to them. Accordingly, in a large building such as the building in McCray, it might not make sense to apply the general rule for burglary of a dwelling if the building does not allow a burglar ready access to the physically remote residences. But here, by contrast, the defendant was in close physical proximity to the residents above him, even if he lacked instant access to them. Thus, just as in Quinn, defendant’s entry into the Deli basement, in “close contiguity” to the residents above, created the potential to raise the “midnight terror” to which the burglary statute is aimed. In arguing that the general rule for burglary of a dwelling does not apply to this case, defendant misstates the Court’s holdings in Quinn and McCray. For instance, he -29- asserts that Quinn “makes clear that connection, whether internal or external, is relevant” to the analysis of whether a commercial space constitutes a dwelling (DB: 25). As explained above, however, that is simply incorrect. At the risk of undue repetition, it is clear that the Court in Quinn explicitly held that the lack of connection between the place burglarized and the dwelling-house is generally immaterial when the two are “within the same outer walls and under the same roof as the whole building,” because the dangers of “alarm” and “personal violence” are still present. Quinn, 71 N.Y. at 573. Similarly unfounded is defendant’s claim that, at common law, courts would consider whether there was “external” connection between the place burglarized and the dwelling when internal connection was lacking (see DB: 25-26). Rather, courts at common law held consistently with Quinn that burglary of a dwelling occurred whenever the place burglarized and the dwelling were under the “same roof and within the same four walls.” Quinn, 71 N.Y. 572-73; see also id. at 566 (explaining that in the Case of Gibson, Mutton & Wiggs, Leach’s Cr. Cases, defendant’s entry into a shop having “no internal connection” with the dwelling constituted burglary of a dwelling when the shop and dwelling were “within the same building and the same roof”). Moreover, as explained, the question of external communication—i.e., the same fence or curtilage—was relevant in the common law for the question of whether unconnected “out-houses” could be considered dwellings when on the same lot as the dwelling house. Id. at 566-69. -30- Nor did this Court hold that the “dispositive factor is the potential for confrontation with a person in his or her dwelling” (see, e.g., DB: 18, 23) (emphasis added). Instead, as this Court has made clear, it is the potential for dangerous confrontation that can happen anywhere near the residence that triggers the enhanced penalties for burglary of a dwelling. See McCray, 23 N.Y.3d at 627 (“When a store owner in his bedroom becomes conscious that there is a burglary in the shop downstairs, or when a hotel guest hears a burglar in the coffee shop across the hall from her room, the special dangers that accompany the burglary of a dwelling are sufficiently present to justify treating the crime as a more serious one than burglary of a building where no one lives.”). Next, defendant contends that limiting the exception’s reach to “large” buildings will “lead to overbroad application of the burglary statute” (DB: 18). But, in seeking to apply the exception to the building at issue, it is defendant who seeks an overly broad application of what the Court has explicitly termed the “exception.” First of all, as discussed above, the building at issue in this case is not a large building; it is the quintessential multiuse residential apartment building with one store on the first floor. To apply the exception to this building would result in the “exception” becoming the “general” rule, because few buildings would be small enough to qualify for the “general” rule’s application. But even more critically, the meaning of burglary statute is plain: “Where a building consists of two or more units separate secured or occupied, each unit shall be -31- deemed both a separate building in itself and a part of the main building.” Penal Law § 140.00(2). By its clear terms, the statute has broad application, which this Court has repeatedly recognized in holding that, “[g]enerally, if a building contains a dwelling in any part of that building is the burglary of a dwelling.” McCray, 23 N.Y.3d at 624; accord Quattlebaum, 91 N.Y.2d at 747; Quinn, 71 N.Y. at 573. To be sure, this Court has created an exception to that general rule, but it has expressly limited that exception to “large” buildings where “the crime is committed in a place so remote and inaccessible from the living quarters.” McCray, 23 N.Y.3d at 624. As discussed, that limitation makes sense; in large buildings with neither instant access and nor close physical proximity between the place burglarized and the place of repose, there is “virtually no risk” that overnight occupants would even be aware of the burglary. To read out of the exception the significance of the size of the building being burglarized would turn the exception into the rule and would be contrary to the statute, this Court’s precedent, and the policy behind the statute. Lastly, defendant argues that criminal liability for burglary of a dwelling should not turn on “something as subjective or as ill-defined as whether or not a building is ‘large’” (DB: 30). By focusing on accessibility in this case, however, defendant is asking the Court to establish a rule requiring lower courts and juries to make a different, but equally subjective, consideration about ease of access—for which no guiding standard exists—in every case involving the burglary of a commercial part of a multiuse building. That is neither what the Legislature intended when it drafted the -32- statute, nor what this Court intended when it used the terms general and exception to describe the rules for burglary of a dwelling. Indeed, under the Court’s long-standing precedent, the general rule is straightforward and objective, i.e., burglary of any part of a building containing a dwelling is burglary of a dwelling; the size of a building is relevant only in exceptional cases, when the general rule does not apply if there is virtually no risk residents would be aware of, and alarmed by, the burglary. See McCray, 23 N.Y.3d at 627. In contrast to defendant’s focus on the inherently subjective factor of accessibility, the Court’s rule is clear, straightforward, and predictable, and has been routinely applied in this state for more than a hundred years. This Court should reject defendant’s attempt to confuse the issues by making the subjective analysis of accessibility the general rule for burglary of a dwelling. * * * In sum, because the basement that defendant burglarized was “within the same outer walls and under the same roof” as the apartments above, it was a dwelling under this Court’s well-settled precedent. Moreover, the exception for “large buildings” first recognized in Quinn is inapplicable to the seven-story residential apartment in this case. Quinn, 71 N.Y. at 573; see also McCray, 23 N.Y.3d at 624; see Penal Law §§ 140.00, 140.25(2). -33- POINT II THE EVIDENCE AT TRIAL OVERWHELMINGLY DEMONSTRATED DEFENDANT’S INTENT TO COMMIT A CRIME IN THE DELI BASEMENT (Answering Defendant’s Brief, Point II). At trial, the jury found defendant guilty of both burglary counts based on evidence: that defendant, without permission, entered the off-limits but inadvertently open Deli basement with a flashlight; that he used his flashlight to look around at what was stored inside the darkened basement until he was locked in by a store employee; and that when caught, defendant secreted his flashlight within the basement and resisted arrest. Additionally, hearing evidence that police recovered defendant’s cellphone from his person during his arrest, the jury had ample basis to reject defendant’s testimony that he had entered the basement to look for his lost cellphone. The Appellate Division unanimously rejected these arguments. People v. Joseph, 124 A.D.3d at 440. As he did below, defendant again contends that his burglary convictions should be reversed because the People failed to introduce legally sufficient evidence of his intent to commit a crime. Defendant’s claim is without merit. It is well established that a verdict is “legally sufficient if there is any valid line of reasoning and permissible inferences that could lead a rational person to conclude that every element of the charged crime has been proven beyond a reasonable doubt.” People v. Gordon, 23 N.Y.3d 643, 649 (2014) (internal citations, quotation marks, and -34- alterations omitted). Thus, a reviewing court must “marshal competent facts most favorable to the People,” People v. Danielson, 9 N.Y.3d 342, 349 (2007), and draw all reasonable inferences in their favor. People v. Kennedy, 47 N.Y.2d 196, 203 (1979). To that end, the court “must assume that the jury credited the People’s witnesses and gave the prosecution’s evidence the full weight it might reasonably be accorded.” Gordon, 23 N.Y.3d at 649 (internal citations and quotation marks omitted). Whether a defendant possesses the requisite intent is a classic issue of fact for the jury to resolve. See, e.g., People v. Cabey, 85 N.Y.2d 417, 421-22 (1995). And, because the “element of intent is rarely proved by an explicit expression of culpability,” People v. Bueno, 18 N.Y.3d 160, 169 (2011), intent may be inferred from the defendant’s conduct and the surrounding circumstances. People v. Mackey, 49 N.Y.2d 274, 279 (1980); see also People v. Samuels, 99 N.Y.2d 20, 24 (2002) (“[I]ntent is the product of the invisible operation of [the] mind to be determined, invariably, on the basis of defendants’ statements and conduct.”). Moreover, on issues of intent, “[c]ompeting inferences . . . if not unreasonable, are within the exclusive domain of the finders of fact.” People v. Barnes, 50 N.Y.2d 375, 381 (1980). Thus, whenever a jury has drawn a reasonable inference that a defendant acted with the requisite intent that factual finding should not be second-guessed on appeal. See Barnes, 50 N.Y.2d at 381; accord Bueno, 18 N.Y.3d 160, 169 (2011). Here, it is clear that the jury rationally concluded that defendant entered the basement to commit a crime there. See Bueno, 18 N.Y.3d at 169; see also People v. Gaines, -35- 74 N.Y.2d 358, 363 (1989) (intent to commit a crime must exist “contemporaneous[ly]” with the unlawful entry). To begin, it was undisputed at trial that the public was prohibited from entering the Deli basement; defendant himself admitted that he should not have just entered the basement without first getting permission from a Deli employee to do so (Roy: A329; Joseph: A376). Moreover, while the entrance to the basement was normally closed, Deli employee Roy testified that store employees had accidentally left the doors open that evening (Roy: A332, 348-49). In light of this testimony, as well as the photographic evidence showing the colorful advertisements for Deli merchandise right next to the basement entrance, (People’s Exs. 1 & 2 [photographs]), any reasonable juror could have concluded that defendant, seeing these advertisements and the inadvertently-open basement doors as he walked by the Deli, decided to take advantage of the employees’ mistake, enter open doors to the basement, and steal something inside. After all, the Deli surveillance video played for the jury shows defendant entering the darkened basement with a small flashlight cupped in his hand. Until he is caught and locked in, defendant walked upright all around the Deli basement, going back and forth from the front to the back while shining his flashlight around the shelves containing store merchandise (People’s Ex. 8 [surveillance video]; see also Roy: A332). In light of this evidence—defendant entering an off-limits commercial area stocked with store merchandise and then searching around that area—it was certainly reasonable for the jury to infer that defendant had entered the basement with the -36- intent to commit a crime, most likely theft of the merchandize inside. See, e.g., Mackey, 49 N.Y.2d at 279; People v. Mahboubian, 74 N.Y.2d 174, 193 (1989). Moreover, defendant’s behavior after he was caught lent further support to the conclusion that he had entered the basement with intent to commit a crime. Indeed, when he was first caught, defendant by his own admission immediately started to look for another exit from the basement, away from the store employees and the police (People’s Ex. 8; see also Joseph: A363-64, 378-80). He also resisted arrest and attempted to escape custody, exclaiming, “I’m not going to jail” (Gore: A273, 276-78). Critically, although defendant was seen on the video with a small flashlight, Officer Gore did not locate a flashlight anywhere on defendant when arresting him (Gore: A282). Given that a small, three-and-a-half-inch flashlight of a kind not sold by the Deli was found hidden in a carton in the basement just a few days after defendant’s arrest, a rational juror could have concluded that defendant—aware that being caught in a darkened store basement with a flashlight would betray his larcenous intent— secreted that flashlight in the carton before being arrested.9 Put simply, defendant’s 9 On appeal, defendant contends that the People “did not offer evidence connecting” the flashlight recovered from the carton of cups in the basement to him (DB: 38-39). To the contrary, the jury had every reason to conclude that this flashlight belonged to defendant. First, given that defendant had suddenly and inexplicably lost his flashlight at some point between the time he searched the basement and the time of his arrest, the jury had every reason to conclude that defendant had it secreted in the basement prior to his arrest. And, any rational juror would have concluded that, contrary to defendant’s testimony, the small, three-and-half inch flashlight found in the carton of cups belonged to him. Not only did this flashlight mysteriously and incongruously appear in that location just days after defendant’s -37- (Continued…) actions after getting caught evinced a consciousness of guilt which further supported the proof of his intent. See People v. Kims, 24 N.Y.3d 422, 439 (2014) (“[e]vidence of defendant’s escape was probative of consciousness of guilt”); see also Cabey, 85 N.Y.2d at 421-22 (jury’s finding with respect to defendant’s intent was supported by evidence including defendant’s “consciousness of guilt”). Thus, the People proved defendant’s intent to commit a crime beyond a reasonable doubt. Indeed, in contrast to the ample proof of his intent, defendant’s explanation for being in the basement—i.e., to look for his dropped cellphone—was contradicted by the other evidence at trial and “implausible.” People v. Joseph, 124 A.D.3d at 440. After all, that explanation was entirely discredited by Officer Gore’s testimony that he recovered defendant’s cellphone from him when Gore arrested defendant (Gore: A290). Furthermore, the jury had every reason to reject defendant’s explanation as unbelievable on its face. First, contrary to defendant’s testimony that he was looking for his phone inside the basement, the surveillance video shows him standing upright burglary, but also, the flashlight appears strikingly similar to the flashlight carried by defendant in the surveillance video. And, the Deli did not sell that model of flashlight (Roy: A344). Lastly, defendant’s arguments about the alleged inconsistencies at trial about whether Officer Gore or the Deli employees recovered the flashlight (DB: 38-39) are simply of no moment. Regardless of who later recovered the flashlight, it was obviously not lost on the jury that this flashlight, which did not belong to the Deli, was recovered from the very same area in which defendant had been just days before. On the basis of this evidence, it was reasonable for the jury to conclude that the flashlight belonged to defendant. -38- ______________________ (…Continued) and looking around at the shelves throughout the basement. In fact, when he first entered the basement, defendant immediately headed towards the back of the basement, not the front by the entrance where a dropped cellphone more likely would have been found. Moreover, according to defendant, when he took his cellphone out of his pocket with “normal force[ ],” it bounced not once, but multiple times, tumbling—unluckily for defendant—into the fortuitously opened basement doors and then disappearing into the darkness (Joseph: A371-74). Indeed, it was defendant’s testimony that although he went immediately into the basement to look for the phone, he could never locate it, even though the basement was “not that big” and defendant was down there for an extended period of time (Joseph: A375-76; 379). Putting aside the fact that Gore testified that he recovered the cellphone from defendant’s person, the fact that defendant’s cellphone miraculously reappeared upon defendant’s arrest further underscored the incredible nature of defendant’s account. On appeal, defendant asserts that this Court should overturn his convictions because he did not attempt to take anything from the basement (DB: 34, 37). Of course, defendant was caught and locked in the basement about forty seconds after entry, and so he did not have much time to steal or commit any crimes there.10 In any 10 The time-stamped surveillance video shows defendant entering the basement at 19:46:27. After defendant walks around the basement and looks at what is stored inside for about forty seconds, at 19:47:06, defendant rushes towards the entrance, and so it is reasonably inferable that it was at this point in time when he was locked in by Roy (People’s Ex. 10). -39- event, as this Court has recognized, although the People must prove that a defendant entered a space with the intent to commit a crime, “there is no requirement that the People allege or establish … that the intended crime actually be committed.” Mahboubian, 74 N.Y.2d at 193. Thus, defendant’s failure to actually steal anything from the basement is simply not dispositive in regards to his intent to commit a crime. Defendant also contends that the fact that he did not break into the basement demonstrates that he lacked the intent to commit any crime inside. As defendant sees it, his entry was “not by force, in a suspicious manner, or at an unusual time” (DB: 35- 37). But the fact that there was no forced entry in this case does not mean defendant lacked the intent to commit a crime. Here, the basement doors were left open, and so no forced entry was required to enter illegally and commit a crime. Certainly, in cases cited by defendant (DB: 36), in which burglars forced their way into buildings, those burglars’ use of force was relevant to their intent to commit crimes. But it plainly does not follow that the absence of force, especially when none was needed, disproves intent. Moreover, defendant’s newly minted assertion that there was nothing unusual about his entry is mystifying. At trial, defendant himself acknowledged that he should not have entered the Deli basement without first talking to store employees (Joseph: A376). Indeed, as the jury surely recognized, common sense would dictate to anyone that members of the general public are prohibited from entering a commercial establishment’s basement storage area without permission. -40- Lastly, defendant argues, for the first time ever, that the evidence at trial showed at most that he formed an intent to commit a crime only after entering the basement (DB: 35, 39-40). Defendant never raised this specific argument in moving for trial order of dismissal—he only argued that the evidence showed that he had no intent to commit any crime (see Proceedings: A351-52)—and so it is unpreserved. People v. Hawkins, 11 N.Y.3d 484, 492 (2008) (where defendant claimed that the People failed to prove that defendant acted with “depraved indifference,” he did not preserve legal question of whether he acted intentionally, rather than recklessly). But even if defendant had made this specific claim to the trial court, it would have had no reason to accept it. As explained above, given the proximity of the advertisements to the inadvertently opened basement doors, it was entirely reasonable for the jury to have concluded that defendant, happening upon both, decided to take advantage of the opportunity and enter the normally closed basement to steal something inside. Even if defendant offered on appeal a plausible alternative explanation for his conduct— which he does not—it would provide no basis for disregarding the jury’s determination. See People v. Grassi, 92 N.Y.2d 695, 699 (1999) (“Defendant has offered myriad innocent explanations or inferences that could be drawn by a jury to counter this evidence. That, however, is not the legal standard by which this Court is bound for reviewing a sufficiency of the evidence appeal”); People v. Gerard, 50 N.Y.2d 392, 397 (1980) (“that evidence leaves a jury with a choice between competing facts and inferences does not mean that a prima facie case has not been established”). -41-