People v. Brown

176 A.D.2d 406, 574 N.Y.S.2d 114, 1991 N.Y. App. Div. LEXIS 12032

Opinion

— Appeal from a judgment of the County Court of Sullivan County (Hanofee, J.), rendered June 29, 1987, upon a verdict convicting defendant of the crime of burglary in the first degree.

Contrary to defendant’s contention, we find no reason to exercise our discretion to reduce his sentence in the interest of justice. His sentence to a prison term of 2 to 6 years was the most lenient sentence County Court could have imposed (Penal Law § 70.02 [3] [a]; [4]). He was convicted after a jury trial of a class B violent felony and we find no abuse of discretion or extenuating circumstances which would warrant interfering with the sentence (see, People v Torrey, 144 AD2d 865; People v Gorman, 125 AD2d 733, lv denied 69 NY2d 880). As to his claim that the verdict was repugnant, this issue was not preserved for review inasmuch as defendant waited until after the jury was discharged before registering any protest (see, People v Neer, 136 AD2d 801). In any event, examining the elements of the crimes as charged to the jury and without reference to the particular facts of the case, the jury could have found defendant guilty of burglary in the first degree (Penal Law § 140.30 [3]) but not criminal possession of a weapon in the fourth degree (Penal Law §265.01 [2]; see, People v Johnson, 70 NY2d 819; People v Brooks, 154 AD2d 940, lv denied 75 NY2d 768).

Casey, J. P., Mikoll, Yesawich Jr., Levine and Crew III, JJ., concur. Ordered that the judgment is affirmed.