People v. Vallevaleix

Judgments, Supreme Court, New York County (Marcy L. Kahn, J.), rendered January 11, 2005, convicting defendant, after a nonjury trial, of two counts of burglary in the third degree, 373 and, upon his plea of guilty, of bail jumping in the second degree, and sentencing him, as a second felony offender, to consecutive terms of 2Vs to 5 years for the burglary convictions, consecutive to a term of IV2 to 3 years for the bail jumping conviction, and concurrent with a term of 1 to 3 years for violation of probation, unanimously modified, on the law, to the extent of vacating the second felony offender adjudication only with respect to the burglary count alleging an offense committed on May 7, 2001 and remanding for resentencing on that count, and otherwise affirmed. The burglary convictions were based on legally sufficient evidence. Defendant was convicted of two burglaries, both recorded by surveillance cameras, committed in 2001 and 2003 on different floors of the same secured corporate offices. The evidence supports the conclusion that in each instance defendant entered with intent to commit a crime. Among other things, in each instance defendant entered surreptitiously, there was no legitimate explanation for his presence, and he was carrying a bag suitable for stealing a laptop computer (see e.g. People v Sainvil, 251 AD2d 46 [1998], lv denied 92 NY2d 930 [1998]). Moreover, the similarities between the incidents reinforced the inference of criminal intent (see generally People v Ingram, 71 NY2d 474 [1988]). As the People concede, defendant should not have been adjudicated a second felony offender with respect to the burglary committed in 2001, since that offense predated the 2002 conviction that served as the predicate felony offense. The circumstances warrant a remand for resentencing on that conviction. We find no basis upon which to disturb the remaining sentences. Concur—Andrias, J.P, Saxe, Nardelli, Williams and Catterson, JJ.