Opinion
April 23, 1996
Appeal from the Supreme Court, New York County (Alvin Schlesinger, J.).
Defendant's challenges to the prosecutor's summation are not preserved by timely and specific objection, and we decline to review them in the interest of justice. Were we to undertake such review, we would nevertheless find any error to be harmless in view of the overwhelming evidence of defendant's guilt ( People v Crimmins, 38 N.Y.2d 407). Moreover, we note that the court gave appropriate curative instructions.
There is no merit to defendant's contention that his conviction for burglary under Georgia Code Annotated § 16-7-1 is an improper predicate for his adjudication as a persistent violent felony offender ( People v. Hall, 158 A.D.2d 69, 81, lv denied 76 N.Y.2d 940; People v. Thompson, 140 A.D.2d 652, 654). His contention that the Georgia statute lacks the mens rea requirement of the equivalent New York statute (Penal Law § 140.25) is contradicted by express statutory provisions, requiring acquittal where "intention" is lacking (Georgia Code Annot § 16-2-2) or where the otherwise unlawful act or omission is justified by the defendant's "misapprehension of fact" (Georgia Code Annot § 16-3-5).
Brinson v. State ( 208 Ga. App. 556, 430 S.E.2d 875), relied upon by defendant, does not support a contrary conclusion. Upholding a defendant's conviction for aggravated sodomy and burglary of a maid in a motel room, the Georgia Court of Appeals noted ( supra, 208 Ga App, at 557, 430 S.E.2d, at 876): "the lodgers testified that they had not given him permission to enter, but that they were on their way out when appellant knocked on their door. They told appellant that they were leaving and left with the door closed and locked. Appellant then entered the room when the motel maid, the victim of appellant's sexual assault, left the door open while she was cleaning the room." While the court expressed its holding in terms of the defendant's lack of "authority to enter the motel room" ( supra, 208 Ga App, at 557, 430 S.E.2d, at 876), no reasonable reading of the decision permits the inference that the court entertained any doubt that the defendant knew his entry was unauthorized.
Concur — Milonas, J.P., Ellerin, Rubin, Ross and Mazzarelli, JJ.