People v. Joseph

Jun 5, 2009
Appeal No. 1
Versions:63 A.D.3d 1658
879 N.Y.S.2d 770

Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered July 9, 2007. The judgment convicted defendant, upon a jury verdict, of burglary in the third degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the third degree (Penal Law § 140.20). The evidence, viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), is legally sufficient to establish that defendant entered the building with the intent to commit a crime therein (see People v Gates, 170 AD2d 971 [1991], lv denied 78 NY2d 922 [1991]). Defendant’s further challenges to the legal sufficiency of the evidence are not preserved for our review (see People v Gray, 86 NY2d 10, 19 [1995]). Viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Defendant failed to preserve for our review his contentions that County Court’s Sandoval ruling constituted an abuse of discretion (see People v Robles, 38 AD3d 1294, 1295 [2007], lv denied 8 NY3d 990 [2007]), and that he was denied a fair trial by the prosecutor’s allegedly improper remarks on summation (see People v Searles, 28 AD3d 1205 [2006], lv denied 7 NY3d 817 [2006]). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Finally, the sentence is not unduly harsh or severe.

Present—Martoche, J.P., Smith, Fahey, Carni and Green, JJ.