Opinion
2015–09634 Ind. No. 4505/14
01-31-2018
The PEOPLE, etc., respondent, v. Jose LETRIZ, appellant.
Paul Skip Laisure, New York, N.Y. (Meredith S. Holt of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Keith Dolan, and Sullivan & Cromwell LLP [John P. Collins, Jr., and James Concannon ], of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Meredith S. Holt of counsel), for appellant.Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Keith Dolan, and Sullivan & Cromwell LLP [John P. Collins, Jr., and James Concannon ], of counsel), for respondent.
WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, SANDRA L. SGROI, COLLEEN D. DUFFY, JJ.
DECISION & ORDERAppeal by the defendant from a judgment of the Supreme Court, Kings County (Evelyn Laporte, J.), rendered September 21, 2015, convicting him of burglary in the third degree, petit larceny, criminal possession of stolen property in the fifth degree, and possession of burglar's tools, 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 beyond a reasonable doubt that the defendant was guilty of burglary in the third degree (see Penal Law § 140.20 ; People v. Shepard, 138 A.D.3d 895, 896–897, 29 N.Y.S.3d 485 ; People v. Hammon, 47 A.D.3d 644, 645, 850 N.Y.S.2d 474 ). Moreover, upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt as to that crime was not against the weight of the credible evidence (see People v. Romero, 7 N.Y.3d 633, 644–645, 826 N.Y.S.2d 163, 859 N.E.2d 902 ; People v. Shepard, 138 A.D.3d at 896–897, 29 N.Y.S.3d 485 ).
Contrary to the defendant's contention, the Supreme Court did not err in failing to give an intoxication charge to the jury (see Penal Law § 15.25 ). A defendant may establish entitlement to such a charge " ‘if the record contains evidence of the recent use of intoxicants of such nature or quantity to support the inference that their ingestion was sufficient to affect defendant's ability to form the necessary criminal intent’ " ( People v. Sirico, 17 N.Y.3d 744, 745, 929 N.Y.S.2d 14, 952 N.E.2d 1006, quoting People v. Rodriguez, 76 N.Y.2d 918, 920, 563 N.Y.S.2d 48, 564 N.E.2d 658 ; see People v. Lynch, 92 A.D.3d 805, 806, 938 N.Y.S.2d 340 ). Here, viewing the evidence in the light most favorable to the defendant, there was insufficient evidence to support an inference that the defendant was so intoxicated as to be unable to form the requisite criminal intent (see People v. Sirico, 17 N.Y.3d at 746, 929 N.Y.S.2d 14, 952 N.E.2d 1006 ; People v. Gaines, 83 N.Y.2d 925, 926–927, 615 N.Y.S.2d 309, 638 N.E.2d 954 ; People v. Lynch, 92 A.D.3d at 806, 938 N.Y.S.2d 340 ).
The defendant's contentions that statements made by the prosecutor during his opening statement and summation deprived him of a fair trial are unpreserved for appellate review, since the defense failed to object to most of those comments, and, as to a comment during summation to which the defense specifically objected, the Supreme Court gave an immediate curative instruction to which the defense did not object (see People v. Burkette, 153 A.D.3d 635, 636–637, 61 N.Y.S.3d 53 ; People v. Kinard, 96 A.D.3d 976, 977, 946 N.Y.S.2d 504 ). In any event, the defendant's contentions are without merit (see People v. Alphonso, 144 A.D.3d 1168, 1168–1169, 43 N.Y.S.3d 83 ; People v. Pringle, 136 A.D.3d 1061, 1062, 25 N.Y.S.3d 635 ; People v. Barber, 133 A.D.3d 868, 871, 22 N.Y.S.3d 63 ; People v. Thompson, 81 A.D.3d 670, 672–673, 916 N.Y.S.2d 151, affd 22 N.Y.3d 687, 985 N.Y.S.2d 428, 8 N.E.3d 803 ).
MASTRO, J.P., HALL, SGROI and DUFFY, JJ., concur.