People v. Smith ( 1992 )

Judgment, Supreme Court, Bronx County (Lawrence H. Bernstein, J.), rendered August 3, 1989, convicting defendant, after a nonjury trial, of burglary in the third degree, and sentencing him, as a second felony offender, to a term of imprisonment of to 5 years, unanimously affirmed.

Viewing the evidence in the light most favorable to the People (People v Malizia, 62 NY2d 755, cert denied 469 US 932), it is sufficient as a matter of law to support the verdict finding defendant guilty of burglary in the third degree. The circumstances under which defendant was observed and ultimately found were sufficient to infer the intent to commit some crime (People v Mackey, 49 NY2d 274), and nothing in the prosecutor’s summation or the trial court’s comments obligated the People to prove an intent to commit a specific crime on the premises in question. The fact that defendant was found stuck inside the air-conditioning duct, with his head and chest still visible on the roof while the rest of his body was inside the premises, was sufficient to satisfy the element of "entry” into the building (People v King, 61 NY2d 550, 555). Nor was the verdict against the weight of the evidence (see, People v Bleakley, 69 NY2d 490). The issues raised by defendant concerning the circumstances under which he was found were properly placed before the fact-finder, and, after considering the relative force of the conflicting testimony and the competing inferences that may be drawn therefrom, we find no reason on the record before us to disturb the verdict. Concur—Sullivan, J. P., Carro, Rosenberger, Kassal and Rubin, JJ.