Opinion
No. 882 KA 07-02063.
June 5, 2009.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered July 9, 2007. The judgment convicted defendant, upon a jury verdict, of burglary in the third degree.
GARY A. HORTON, PUBLIC DEFENDER, BATAVIA (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT R. ZICKL OF COUNSEL), FOR RESPONDENT.
Present: Martoche, J.P., Smith, Fahey Carni and Green, JJ.
It is hereby ordered that the judgment so appealed from 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, viewed in the light most favorable to the People ( see People v Contes, 60 NY2d 620, 621), is legally sufficient to establish that defendant entered the build-ing with the intent to commit a crime therein ( see People v Gates, 170 AD2d 971, lv denied 78 NY2d 922). Defendant's further challenges to the legal sufficiency of the evidence are not preserved for our review ( see People v Gray, 86 NY2d 10, 19). Viewing the evidence in light of the elements of the crime as charged to the jury ( see People v Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence ( see generally People v Bleakley, 69 NY2d 490, 495). Defendant failed to preserve for our review his contentions that County Court's Sandoval ruling constituted an abuse of discretion ( see People v Robles, 38 AD3d 1294, 1295, lv denied 8 NY3d 990), and that he was denied a fair trial by the prosecutor's allegedly improper remarks on summation ( see People v Searles, 28 AD3d 1205, lv denied 7 NY3d 817). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice ( see CPL 470.15 [a]). Finally, the sentence is not unduly harsh or severe.