People v. DelCerro

Nov 7, 2002
Versions:299 A.D.2d 160
753 N.Y.S.2d 358
2002 N.Y. App. Div. LEXIS 10587

—Judgment, Supreme Court, New York County (Felice Shea, J.), rendered November 12, 1999, convicting defendant, after a jury trial, of burglary in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 16 years to life, unanimously affirmed.

Defendant’s motion to dismiss the indictment on the ground that he was deprived of his opportunity to appear before the grand jury was properly denied as untimely (CPL 190.50 [5] *161[c]; People v Biggs, 214 AD2d 312), as well as on the merits, since it did not state a sufficient basis for dismissal. Defense counsel’s failure to effectuate defendant’s request to testify before the grand jury did not constitute ineffective assistance of counsel (see People v Wiggins, 89 NY2d 872).

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis upon which to disturb the jury’s determinations concerning credibility. The credible evidence satisfied the element of an entry onto premises in that it established that defendant broke the windows to the victim’s residence and placed his hands and upper torso inside (see People v King, 61 NY2d 550; People v Clarke, 233 AD2d 831, lv denied 89 NY2d 1010; People v Nestman, 220 AD2d 232, lv denied 88 NY2d 851).

Defendant’s constitutional challenge to the procedure under which he was sentenced as a persistent violent felony offender is unpreserved for appellate review and, in any event, is without merit (see People v Rosen, 96 NY2d 329, cert denied 534 US 899). Concur — Mazzarelli, J.P., Andrias, Buckley and Sullivan, JJ.