People v. Quinones

May 19, 2005
Versions:18 A.D.3d 330
795 N.Y.S.2d 47
2005 N.Y. App. Div. LEXIS 5457

Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), rendered July 10, 2003, convicting defendant, after a jury trial, of burglary in the third degree, and sentencing him, as a second felony offender, to a term of 3½ to 7 years, unanimously affirmed.

The verdict was based on legally sufficient evidence. The evidence supported the conclusion that defendant knowingly and unlawfully entered a nonpublic area behind a bar in a restaurant, with intent to steal bottles of liquor (see People v Canady, 235 AD2d 290 [1997], lv denied 89 NY2d 1090 [1997]; People v Durecot, 224 AD2d 264 [1996], lv denied 88 NY2d 878 [1996]; People v Lloyd, 180 AD2d 527, 527-528 [1992], lv denied 79 NY2d 1003 [1992]).

Defendant‘s challenge to the court‘s failure to swear in the jurors immediately upon their selection, as mandated by CPL 270.15 (2), requires preservation (see People v Agramonte, 87 NY2d 765, 767-770 [1996]) and we decline to review this unpreserved claim in the interest of justice. Were we to review this claim, we would find that this technical error was harmless, particularly since the court swore in the jurors before it delivered its preliminary instructions and proceeded with opening statements and testimony.

We perceive no basis for reducing the sentence. Concur—Saxe, J.P., Marlow, Sullivan, Williams and Gonzalez, JJ.