People v. Benjamin

Appellate Division of the Supreme Court of New York

People v. Benjamin

35 A.D.3d 1185, 825 N.Y.S.2d 397

Appellate Division of the Supreme Court of the State of New York·Decided December 22, 2006·Published·Cited by 4 cases

Opinion

Appeal from a judgment of the Supreme Court, Erie County (Ronald H. Tills, A.J.), rendered May 7, 2004. The judgment convicted defendant, upon a jury verdict, of burglary in the third degree.

It is hereby ordered that the judgment so appealed from be and the same hereby 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 is legally sufficient to support the conviction (see People v Horn, 302 AD2d 975 [2003], lv denied 100 NY2d 539 [2003]; People v Washington, 195 AD2d 1023, 1024 [1993], lv denied 82 NY2d 728 [1993]; see generally People v Bleakley, 69 NY2d 490, 495 [1987]), and the verdict is not against the weight of the evidence (see People v Thomas, 24 AD3d 1242, 1243 [2005], lv denied 6 NY3d 819 [2006]; People v Britt, 298 AD2d 984 [2002], lv denied 99 NY2d 556 [2002]). Defendant failed to preserve for our review his contention that Supreme Court “ ‘did not follow the requisite three-step proce[1186] dure in evaluating his Batson challenge[ ]’ ” (People v Gales, 28 AD3d 1163, 1163 [2006], lv denied 7 NY3d 756 [2006]; see People v Robinson, 1 AD3d 985, 985-986 [2003], lv denied 1 NY3d 633 [2004], 2 NY3d 805 [2004]), and we decline to exercise our power to review defendant’s contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]; People v Strong, 17 AD3d 1121, 1122 [2005], lv denied 5 NY3d 795 [2005]). The sentence is not unduly harsh or severe. Present—Hurlbutt, J.P., Gorski, Centra and Green, JJ.

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Appeal from a judgment of the Supreme Court, Erie County (Ronald H. Tills, A.J.), rendered May 7, 2004. The judgment convicted defendant, upon a jury verdict, of burglary in the third degree.

It is hereby ordered that the judgment so appealed from be and the same hereby 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 is legally sufficient to support the conviction (see People v Horn, 302 AD2d 975 [2003], lv denied 100 NY2d 539 [2003]; People v Washington, 195 AD2d 1023, 1024 [1993], lv denied 82 NY2d 728 [1993]; see generally People v Bleakley, 69 NY2d 490, 495 [1987]), and the verdict is not against the weight of the evidence (see People v Thomas, 24 AD3d 1242, 1243 [2005], lv denied 6 NY3d 819 [2006]; People v Britt, 298 AD2d 984 [2002], lv denied 99 NY2d 556 [2002]). Defendant failed to preserve for our review his contention that Supreme Court “ ‘did not follow the requisite three-step proce[1186] dure in evaluating his Batson challenge[ ]’ ” (People v Gales, 28 AD3d 1163, 1163 [2006], lv denied 7 NY3d 756 [2006]; see People v Robinson, 1 AD3d 985, 985-986 [2003], lv denied 1 NY3d 633 [2004], 2 NY3d 805 [2004]), and we decline to exercise our power to review defendant’s contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]; People v Strong, 17 AD3d 1121, 1122 [2005], lv denied 5 NY3d 795 [2005]). The sentence is not unduly harsh or severe. Present—Hurlbutt, J.P., Gorski, Centra and Green, JJ.

People v. Benjamin, 35 A.D.3d 1185, 825 N.Y.S.2d 397 (N.Y. Ct. App. 2006).

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