People v. Singer , 994 N.Y.S.2d 105 ( 2014 )

People v Singer (2014 NY Slip Op 06855)

People v Singer

2014 NY Slip Op 06855

Decided on October 9, 2014

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 9, 2014
Gonzalez, P.J., Saxe, DeGrasse, Richter, Clark, JJ.

13161 4600/10

[*1] The People of the State of New York, Respondent,

v

Robin Singer, Defendant-Appellant.

Steven Banks, The Legal Aid Society, New York (Frances A. Gallagher of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), for respondent.

Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered March 15, 2011, convicting defendant, after a jury trial, of criminal trespass in the second degree, and sentencing her to a term of one year, unanimously affirmed.

The verdict was supported by legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibility determinations. Defendant's lack of a license to enter the apartment where her estranged niece resided, and defendant's knowledge that her entry was unlawful, were established by both the niece's testimony that she never gave defendant permission to enter and by the totality of the circumstances (see People v Jackson, 118 AD3d 635 [1st Dept 2014]; People v Midgette, 115 AD3d 603, 604 [1st Dept 2014], lv

denied 23 NY3d 965 [2014]). These circumstances included defendant's estrangement from her niece (see People v Schneiderman, 295 AD2d 137, 139 [1st Dept 2002], lv dismissed 98 NY2d 702 [2002]), the deception defendant used to gain access by conveying the impression to building personnel that she was a resident of the apartment (see People v Aaron, 233 AD2d 231 [1st Dept 1996], lv denied 89 NY2d 983 [1997]), the unusual hour and egregious circumstances of the entry (see People v White, 276 AD2d 287 [1st Dept 2000], lv denied 96 NY2d 740 [2001]) and defendant's statements evincing her knowledge that her entry was unlawful and her consciousness of guilt (see Jackson, 118 AD3d at 636).

Since defendant never alerted the court to the specific claim she raises on appeal, defendant's challenge to the prosecutor's summation is unpreserved (see People v Romero, 7 NY3d 911 [2006]), and we decline to review it in the interest of justice. As an alternative holding, we find no basis for reversal. By referring to the niece as the "tenant" of the apartment, the prosecutor did not act as an unsworn expert witness regarding the niece's right to occupy the apartment. Instead, the prosecutor used the term colloquially and not in a

technical legal sense (see People v Martinez, 95 AD3d 462 [1st Dept 2012], lv denied 19 NY3d 975 [2012]). In any event, the prosecutor's conduct did not deprive defendant of a fair trial.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 9, 2014

CLERK