Opinion
No. KA 04-02763.
December 22, 2006.
Appeal from a judgment of the Supreme Court, Erie County (Ronald H. Tills, A. J.), rendered May 7, 2004. The judgment convicted defendant, upon a jury verdict, of burglary in the third degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (PAUL B. CURTIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (TINA M. STANFORD OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: Hurlbutt, J.P., Gorski, Centra and Green, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby 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 is legally sufficient to support the conviction ( see People v Horn, 302 AD2d 975, lv denied 100 NY2d 539; People v Washington, 195 AD2d 1023, 1024, lv denied 82 NY2d 728; see generally People v Bleakley, 69 NY2d 490, 495), and the verdict is not against the weight of the evidence ( see People v Thomas, 24 AD3d 1242, 1243, lv denied 6 NY3d 819; People v Britt, 298 AD2d 984, lv denied 99 NY2d 556). Defendant failed to preserve for our review his contention that Supreme Court "`did not follow the requisite three-step procedure in evaluating his Batson challenge'" ( People v Gales, 28 AD3d 1163, 1163, lv denied 7 NY3d 756; see People v Robinson, 1 AD3d 985, 985-986, lv denied 1 NY3d 633, 2 NY3d 805), and we decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice ( see CPL 470.15 [a]; People v Strong, 17 AD3d 1121, 1122, lv denied 5 NY3d 795). The sentence is not unduly harsh or severe.