Opinion
2015–11228 Ind. No. 75/15
08-08-2018
The PEOPLE, etc., respondent, v. Clinton P. GARDNER, appellant.
Randall D. Unger, Bayside, NY, for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Kew Gardens, Nancy Fitzpatrick Talcott, and Ayelet Sela of counsel), for respondent.
Randall D. Unger, Bayside, NY, for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Kew Gardens, Nancy Fitzpatrick Talcott, and Ayelet Sela of counsel), for respondent.
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, ROBERT J. MILLER, COLLEEN D. DUFFY, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County ( Leslie G. Leach, J.), rendered October 28, 2015, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of burglary in the second degree beyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ; People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant's challenge to the Supreme Court's failure to provide a circumstantial evidence charge to the jury is unpreserved for appellate review, as the defendant did not request such a charge or object to the charge as given (see CPL 470.05[2] ; People v. Jones, 138 A.D.3d 1144, 1145, 30 N.Y.S.3d 329 ; People v. Joseph, 114 A.D.3d 878, 879, 980 N.Y.S.2d 805 ). We decline to review this issue in the exercise of our interest of justice jurisdiction (see People v. Hojas, 271 A.D.2d 547, 547, 706 N.Y.S.2d 349 ).
Contrary to the defendant's contention, the verdict convicting him of burglary in the second degree and acquitting him of grand larceny in the fourth degree and criminal mischief in the fourth degree was not repugnant. The essential elements of the crime of which the defendant was convicted, as charged by the Supreme Court, differ from the essential elements of the crimes of which he was acquitted (see People v. Tucker, 55 N.Y.2d 1, 6–7, 447 N.Y.S.2d 132, 431 N.E.2d 617 ).
DILLON, J.P., LEVENTHAL, MILLER and DUFFY, JJ., concur.