Date: May 9, 2025

People v. Marcantonio: Circumstantial Proof of Intent to Reenter a Dwelling Sustains Attempted First-Degree Burglary After a Shot is Fired at the Door

Introduction

In People v Marcantonio (2025 NY Slip Op 02821 [238 AD3d 1262] [3d Dept May 8, 2025]), the Appellate Division, Third Department affirmed a judgment convicting Joshua Marcantonio of attempted burglary in the first degree (three counts), reckless endangerment in the first degree, criminal possession of a weapon in the third degree, multiple counts of criminal mischief, and overdriving, torturing and injuring animals.

The case arose from a late-night incident at the victim’s home after the victim invited defendant—an acquaintance connected to the victim’s incarcerated son—over to “catch up.” The parties sharply disputed who initiated violence and who fired a shotgun. The prosecution’s theory was that defendant was ejected, returned with the shotgun, fired into the front door, then attempted to regain entry. Defendant claimed the victim emerged with the shotgun and it discharged accidentally during a struggle.

On appeal, defendant challenged (i) the weight of the evidence supporting the attempted burglary and weapon possession convictions (with legal sufficiency largely unpreserved), (ii) argued the three attempted burglary counts were multiplicitous, and (iii) claimed ineffective assistance of counsel. He also sought sentence reduction.

Summary of the Opinion

Legal sufficiency: Not preserved as argued because the renewed trial order of dismissal motion was not directed to the convictions challenged on appeal (citing People v Morris and People v Kolupa).
Weight of the evidence: The attempted burglary (first degree) and weapon possession convictions were supported by the weight of the evidence. The court held that intent to reenter the dwelling could be inferred from circumstances including the precise placement of the shotgun blast and evidence of door-handle manipulation.
Multiplicity: The claim was unpreserved and meritless; the three attempted burglary counts were based on distinct, independent statutory elements (different aggravating factors under Penal Law § 140.30).
Ineffective assistance: Defendant received meaningful representation; counsel’s challenged choices did not show lack of strategy or prejudice under New York’s standard.
Sentence: No reduction warranted given seriousness and circumstances.

Analysis

Precedents Cited

1) Preservation and appellate review limits

People v Morris, 126 AD3d 1370 (4th Dept 2015), lv denied 26 NY3d 932 (2015): Used to support the rule that appellate review of legal sufficiency requires a properly directed trial order of dismissal motion.
People v Kolupa, 13 NY3d 786 (2009): Reinforces that a generalized or incomplete renewal does not preserve all sufficiency issues; the renewal must specifically address the challenged count(s) or theory.

2) Weight-of-the-evidence framework and deference

People v Danielson, 9 NY3d 342 (2007): Central framework—reviewing court “weighs” evidence and inferences while respecting the jury’s credibility determinations.
People v Cahill, 2 NY3d 14 (2003): Cited for the appellate court’s obligation, in weight review, to be satisfied the People proved each element beyond a reasonable doubt.
People v Baque, 43 NY3d 26 (2024): Modern restatement of weight review principles and deference to jury.
People v Bleakley, 69 NY2d 490 (1987): Classic articulation of “great deference” owed to the fact-finder’s opportunity to observe witnesses.
People v Romero, 7 NY3d 633 (2006): Further supports the balance of independent review and deference.

3) Proving intent in burglary/attempt cases by circumstances

People v Naradzay, 11 NY3d 460 (2008): Key authority for the proposition that intent can be inferred from circumstances, including conduct around entry and threats or violence.
People v Haynes, 177 AD3d 1194 (3d Dept 2019), lv denied 34 NY3d 1128 (2020): Applied similarly for inferring intent from surrounding conduct; supports the Third Department’s approach here.
People v Cajigas, 19 NY3d 697 (2012) and People v Lewis, 5 NY3d 546 (2005): Reaffirm that in burglary, the People need not prove the specific crime intended inside; it is enough that defendant intended to commit “a crime therein.”

4) Multiplicity doctrine

People v Alonzo, 16 NY3d 267 (2011): General multiplicity framework—multiple counts may be impermissible if they punish the same offense under different labels.
People v Latnie, 180 AD3d 1238 (3d Dept 2020) and People v Valcarcel, 160 AD3d 1034 (3d Dept 2018), lv denied 31 NY3d 1088 (2018): Cited for preservation requirements under CPL 470.05 (2) when raising multiplicity.
People v Gillie, 185 AD3d 1539 (4th Dept 2020), lv denied 35 NY3d 1094 (2020) and People v Ayala, 172 AD3d 1084 (2d Dept 2019), lv denied 34 NY3d 949 (2019), cert denied 593 US &mdash, 141 S Ct 2771 (2021): Used to support the conclusion that separate counts are permissible where each requires proof of a distinct element.
People v Barnes, 64 AD3d 890 (3d Dept 2009), lv denied 13 NY3d 858 (2009): Cited by “compare” signal, indicating contrasting circumstances where multiplicity concerns may be more substantial.

5) Effective assistance of counsel (New York standard)

People v Benevento, 91 NY2d 708 (1998): Governing New York standard—whether defendant received meaningful representation viewed in totality.
People v Stultz, 2 NY3d 277 (2004): Counsel not ineffective for failing to make a motion that would likely fail.
People v Barboni, 21 NY3d 393 (2013): Admission of relevant photographs—even if unpleasant—often upheld; counsel’s failure to object does not automatically show ineffectiveness.
People v Delbrey, 179 AD3d 1292 (3d Dept 2020), lv denied 35 NY3d 969 (2020): A single deficiency in motion practice typically insufficient to establish ineffectiveness.
People v Lafountain, 200 AD3d 1211 (3d Dept 2021), lv denied 38 NY3d 951 (2022): Matters outside the record (e.g., uncalled witnesses and their potential testimony) should generally be raised via CPL article 440.

Legal Reasoning

1) Attempted first-degree burglary—inferring intent to reenter after being expelled

The court applied Penal Law § 110.00 (attempt) and § 140.30 (burglary in the first degree), focusing on whether the proof supported that defendant, after being put out, intended to enter (or reenter) the dwelling and commit a crime inside, while satisfying one of the first-degree aggravators (armed with a deadly weapon; used/threatened use of dangerous instrument; displayed what appears to be a firearm).

Although the victim and defendant provided competing narratives, the Third Department emphasized the jury’s role in resolving credibility and relied on objective corroboration:

Neighbor/occupant testimony indicating no loud struggle prior to the blast, supporting the People’s sequence of events.
Ballistics evidence that the shot was close-range and precisely located between doorknob and deadbolt, at an angle consistent with someone approaching up the porch steps—supporting an inference of purposeful disabling of the door/lock area.
Evidence the damaged door could not be opened, consistent with an attempted (but thwarted) entry.
DNA evidence indicating defendant handled the shotgun and knives.
911 call and body-camera footage capturing contemporaneous reactions and defendant’s condition.

Critically, the court rejected defendant’s claim that there was “no evidence” he intended to re-enter, holding that intent may be inferred from circumstances (citing People v Naradzay and People v Haynes). The opinion specifically points to the victim’s testimony about “jiggling and turning [the] door knob” immediately after the shot, combined with the targeted shot placement, as circumstantial proof of intent to regain entry.

The court also relied on People v Cajigas and People v Lewis to underscore that the People did not have to identify the exact crime defendant intended to commit once inside—only that he intended “a crime therein.”

2) Weapon possession—intent to use unlawfully

As to Penal Law § 265.02 (1), the court held the trial proof supported possession of a dangerous or deadly weapon with intent to use unlawfully against another, together with the prior-conviction element. The same event proof—bringing the shotgun and ammunition, discharging it at the door, and the surrounding circumstances—supported the inference of unlawful intent.

3) Multiplicity—three attempted burglary counts based on distinct aggravators

Even setting aside lack of preservation, the Third Department held the attempted burglary counts were not multiplicitous because each count required proof of “distinct and independent elements.” The structure of Penal Law § 140.30 supports separate theories of first-degree burglary (e.g., “armed with a deadly weapon,” “uses/threatens immediate use of a dangerous instrument,” “displays what appears to be a firearm”). The court treated those alternatives as sufficiently distinct for charging and proof purposes in this case (citing People v Gillie and People v Ayala, and comparing People v Barnes).

4) Meaningful representation—strategy and prejudice

Applying People v Benevento, the court found no ineffective assistance. It rejected several claims as either reasonable strategy or non-prejudicial:

No deficiency for failing to bring a likely unsuccessful multiplicity motion (People v Stultz).
No showing that failing to object to photos of the deceased dog was unreasonable; the photos were relevant and “not graphic” (People v Barboni).
A criticized “form motion” practice (in the grand jury context) was not enough to establish ineffectiveness, especially as a single alleged failing (People v Delbrey).
Claims about counsel’s illness and a not-called law enforcement witness were either contextually unsupported or outside the record—better suited to CPL article 440 (People v Lafountain).

The court emphasized counsel’s overall performance: obtaining beneficial plea offers, proper motion practice, vigorous cross-examination, a viable defense presentation, and cogent openings/closings—satisfying the “meaningful representation” standard.

5) Sentence review

Under CPL 470.15 (6) (b), the court declined to reduce a lawful sentence, highlighting defendant’s lack of responsibility, commission of the offenses while on probation, the “senseless” violence, and the severe emotional consequences of killing a family pet—along with the fortuity that the victim was not killed.

Impact

Although the decision largely applies established doctrine, it is notable for how concretely it ties specific physical evidence to the inference of intent to enter/reenter in an attempted burglary scenario:

Prosecutorial proof of intent: The opinion signals that targeted damage to a door/lock area—paired with immediate post-shot conduct at the door—can strongly support intent to enter, even where the defendant claims accidental discharge or a struggle.
Defense strategy: Where intent is inferred from ballistic placement and door mechanics, the defense will often need a competing expert/forensic narrative (rather than only testimonial contradiction) to undermine the inference.
Charging practice: The multiplicity discussion supports indictments that plead multiple first-degree burglary theories (different § 140.30 aggravators) as separate counts, at least where the People can articulate distinct proof elements for each.
Appellate preservation: The case reiterates that counsel must specifically direct trial dismissal motions to the challenged counts/theories to preserve legal sufficiency review—otherwise defendants are pushed into the narrower posture of weight review.

Complex Concepts Simplified

Legal sufficiency vs. weight of the evidence: Legal sufficiency asks whether, viewing evidence in the People’s favor, any rational juror could find the elements proved. It often requires preservation by a specific trial motion. Weight of the evidence is a broader review where the appellate court considers credibility and conflicting testimony, but still gives great deference to the jury’s opportunity to see and hear witnesses.
Attempt (Penal Law § 110.00): “Attempt” requires intent to commit the target crime plus conduct that comes dangerously close to completing it. Here, firing into the door and then trying the knob could qualify as conduct tending to effect entry.
Burglary intent (“intent to commit a crime therein”): The People do not have to prove what exact crime was planned inside (larceny, assault, etc.); they must prove the intent to commit some crime inside, which may be inferred from conduct and circumstances.
Multiplicity: “Multiplicitous” counts improperly split one offense into multiple charges. Courts allow multiple counts when each count requires proof of a fact/element the other does not. Here, different first-degree burglary aggravators were treated as distinct element sets.
Meaningful representation (New York ineffective assistance): New York focuses on the overall fairness and adequacy of counsel’s performance in totality, not solely on whether a different lawyer might have made different objections or motions.

Conclusion

People v Marcantonio affirms serious convictions arising from a disputed late-night shooting at a residence and underscores several practical rules: (1) appellate sufficiency review can be lost without precise trial preservation; (2) in attempted burglary, intent to (re)enter can be inferred from highly specific physical circumstances—here, the targeted shotgun blast to the lock area coupled with immediate manipulation of the doorknob; (3) multiple attempted first-degree burglary counts may stand where based on distinct statutory aggravators; and (4) “meaningful representation” is assessed holistically, with deference to strategy and the likelihood of success of unmade motions.