People v. Davila , 582 N.Y.S.2d 100 ( 1992 )

— Judgment, Supreme Court, Bronx County (Richard Price, J.), rendered January 22, 1990, convicting defendant, after a jury trial, of burglary in the third degree and criminal possession of stolen property in the fifth degree, and sentencing him to concurrent terms of imprisonment of 3 Vi to 7 years and one year, respectively, unanimously affirmed.

At 4:20 a.m., two police officers, observed defendant removing the change from a cash register of a dry cleaning store. Except for a broken gate leading to the basement area, the store was otherwise closed. Defendant was eventually apprehended in the basement of the store, with $21.90 in change on his person; other items were stacked near the broken gate.

In view of the overwhelming evidence of guilt, including not only circumstantial evidence of an unlawful entry (a broken gate) and an intent to take property (items stacked up near where defendant had entered), but also the police officers’ actual observation of defendant taking change from the cash register, under no rational view of the evidence could it be said that defendant’s intent to commit the crime was an afterthought to his unlawful entry. Thus, any unpreserved error in the court’s charge relating to "unlawful remaining” (see, People v Gaines, 74 NY2d 358) would not warrant reversal (People v Santana, 172 AD2d 299, lv denied 77 NY2d 1000). Concur — Sullivan, J. P., Wallach, Kassal and Rubin, JJ.