Appeals (1) from a judgment of the County Court of Broome County (Smith, J.), rendered April 6, 1999, upon a verdict convicting defendant of the crimes of burglary in the second degree, aggravated criminal contempt and endangering the welfare of a child, and (2) from a judgment of said court, rendered April 6, 1999, convicting defendant upon his plеa of guilty of the crime of aggravated unlicensed operation of a motor vehicle in the first degree.
On the evening of June 12, 1998, Dawn Slopka rejectеd several telephone calls from defendant, her former boyfriend, asking to come to her apartment. When he continued to call her, she refused tо answer and let her answering machine take his calls. Later, in the early morning hours after Slopka and her
Defendant was indicted for two counts of burglary in the first degree, one count of aggravated criminal contempt and two counts of endangering the welfare of a child. A mistrial was declared during defendant’s first trial in January 1999 when the People elicited testimony of drug abuse precluded by County Court’s pretrial ruling. During defendant’s second trial, County Court amended one of the counts of burglary in the first degree to burglary in the second degree. At the conclusion of that trial, defendant was acquitted of burglary in the first degree and one count of endangering the welfare of Slоpka’s daughter, but found guilty of burglary in the second degree, aggravated criminal contempt and endangering the welfare of Slopka’s son. Defendant was thereafter sentenced to concurrent terms of imprisonment of 4 to 8 years for the burglary conviction and 2 to 6 years for the contempt conviction, and tо a concurrent jail term of one year for his conviction of endangering the welfare of a child. Defendant appeals.
Initially, we find no merit in defendаnt’s contention that the evidence at the second trial was not legally sufficient to support a conviction of burglary in the second degree. As is relevаnt here, a “person is guilty of burglary in the second degree when he [or she] knowingly enters or remains unlawfully in a building with the intent to commit a crime therein, and when. * * * [t]he building is a dwelling” (Pеnal Law § 140.25 [2]). Slopka testified that although she and defendant had dated and once lived together, they were no longer a couple by June
Nor is- there merit to defendant’s contention that the jury’s finding of an unlawful entry was against the weight of the evidence because of the testimony of witnesses on his behalf confirming that Slopka voluntarily had frequent contact with him. A jury is free to selectively credit any portion of the evidence it deems worthy of belief and reject the rest (see, People v Rose,
Next, we disagree with defendant’s contention that County Court erred in granting a mistrial without prejudice and, thus, deprived him of his right against double jeopardy. “[R]etrial will be barred even though the defendant requests, and thereby consents to, a mistrial — when the prosecution deliberately provokes a mistrial” (Matter of Davis v Brown,
Defendant’s remaining contentions concerning County Court’s amendment of thе indictment and charge to the jury as to the prosecution’s burden of proof, the alleged repugnancy of the verdicts and the admission of the tape of Slopka’s 911 call are not preserved for our review. However, were we to review them, we would find them to be lacking in merit as well.
Lastly, we briefly address defеndant’s contention* that the sentence and commitment order erroneously indicates that he was convicted of burglary in the second degree pursuant to Penal Law § 140.25 (1) and (2) because he was convicted only pursuant to subdivision (2). On the record before us, we cannot ascertain whether the order is inaccurate or whether such a clerical error would in any way affect defendant’s treatment by the Department of Correctional Services. However, as defendant alleges only informal contacts with County Court concerning the alleged error, we find it appropriate to remit the issue to County Court for considеration and correction, if needed.
Accordingly, the matter is remitted to County Court for consideration of defendant’s contention regarding the accuracy of the commitment order only.
Mercure, J. P., Crew III, Mugglin and Lahtinen, JJ., concur. Ordered that the decision is withheld relating to indictment No. 98-520, and matter remitted to the County Court оf Broome County for consideration of defendant’s contention regarding the accuracy of the commitment order. Ordered that the judgment relating to indictment No. 98-305 is affirmed.
Notes
Under a separate indictment dated May 12,1998, defendant was charged with aggravated unlicensed operation of a motor vehicle in the first dеgree. Defendant ultimately pleaded guilty to that crime and he was sentenced to a term of imprisonment of IV3 to 4 years at the same time he was sentenсed for the other convictions. Although defendant filed a notice of appeal from this conviction as well, he does not address this conviction in his brief and his appeal from said judgment is therefore deemed abandoned.