People v. Swain

—Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of burglary in the third degree (Penal Law § 140.20) and sentencing him to an indeterminate term of incarceration of 2 to 6 years. The evidence is legally sufficient to convict defendant of burglary, and the verdict is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495). Defendant’s conduct and statements overwhelmingly support the jury’s finding that defendant unlawfully entered the building with the intent to steal the computer.

Defendant was not denied effective assistance of counsel. Considering the evidence, the law, and the facts of this case, we conclude that “meaningful representation was provided” to defendant (People v Satterfield, 66 NY2d 796, 799). Counsel cannot be faulted for failing to demand a Massiah hearing (see, Massiah v United States, 377 US 201). There is no indication that the jailhouse informant was acting as an agent of police when defendant made his incriminating statements. Rather, the record establishes that police did not learn of the statements until weeks afterwards.

We have considered defendant’s challenge to the severity of the sentence and conclude that it is without merit. (Appeal from Judgment of Niagara County Court, Hannigan, J. — Burglary, 3rd Degree.) Present — Pigott, Jr., P. J., Wisner, Scudder and Lawton, JJ.