Opinion
February 25, 1993
Appeal from the Supreme Court, Bronx County (Arlene Silverman, J.).
The trial court properly denied defendant's motion at the close of the People's case for a trial order of dismissal as to the burglary, since, regardless of the testimony offered by the employee from the city agency which owned the building in question, the circumstantial evidence — including the hour at which defendant and his companion were found, that they were enlarging a hole in the wall that was already large enough to see through to the adjoining premises, that they were working in the dark, and defendant's attempted flight — provided more than enough legally sufficient proof to defeat the motion. Defendant's attempts to cast doubt on the proof of any element of the burglary charge was an issue properly submitted to the jury (People v Vasquez, 142 A.D.2d 698, lv denied 72 N.Y.2d 1050). The testimony offered by defendant's witness as to defendant's permission or authority to be in the vacant first-floor apartment was equivocal, and clearly outweighed by defendant's concession that he had no such permission.
Defendant's numerous claims of prosecutorial misconduct during summation were either unpreserved or sufficiently cured by the court's prompt curative instructions (see, e.g., People v Villarino, 184 A.D.2d 475, 476, lv denied 80 N.Y.2d 977). In any event, any prosecutorial misconduct was harmless in view of the overwhelming proof of defendant's guilt (supra, at 477).
Concur — Milonas, J.P., Rosenberger, Kupferman, Asch and Kassal, JJ.