| N.Y. App. Div. | May 2, 1996
Judgment, Supreme Court, New York County (Alfred Kleiman, J.), rendered January 14, 1994, convicting defendant, after a jury trial, of burglary in the second degree and possession of burglar’s tools, and sentencing him, as a persistent violent felony offender, to concurrent prison terms of 8 years to life and 1 year, respectively, unanimously affirmed.
Defendant’s claim that the court should have given a circumstantial evidence charge is unpreserved for appellate review as a matter of law (People v Battle, 198 AD2d 112, lv denied 83 NY2d 802), and we decline to review it in the interest of justice. If we were to review it, we would find that such a charge was not warranted since there was both direct and circumstantial evidence of defendant’s guilt, the direct evidence including the police officers’ observation of defendant loading stolen property into a cart and the broken locks on the basement door (supra). Similarly unpreserved is defendant’s contention that the prosecutor improperly instructed the jury on circumstantial evidence during voir dire (People v Rodriguez, 220 AD2d 208, 209), and we decline to review it in the interest of justice.
Defendant’s contention concerning the suppression ruling is without merit.
We perceive no abuse of discretion in sentencing. Concur— Murphy, P. J., Milonas, Williams, Tom and Mazzarelli, JJ.