People v. Lambert

260 A.D.2d 313, 690 N.Y.S.2d 181

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 29, 1999
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (John Cataldo, J.), rendered June 12, 1997, convicting defendant, after a jury trial, of attempted, burglary in the second degree and attempted criminal trespass in the second degree, and sentencing him, as a second felony offender, to concurrent terms of 5 years and 1 year, respectively, unanimously modified, on the law and the facts, to the extent of vacating the conviction of attempted criminal trespass in the second degree and dismissing that count of the indictment, and otherwise affirmed.

The evidence was legally sufficient to support defendant’s conviction of attempted burglary in the second degree and that verdict was not against the weight of the evidence. The jury had ample basis on which to reject defendant’s explanation for his conduct and to find, instead, that he attempted to enter the premises with criminal intent. However, the evidence was insufficient to support the conviction of attempted criminal trespass in the second degree, since there was no evidence of an attempt to enter the relevant premises, and we modify the judgment accordingly. We further find that the attempted criminal trespass conviction was against the weight of the evidence.

Since defendant never asked the court to instruct the jury to consider his prior criminal record only as to his credibility, and not to infer a general propensity to commit crimes, the issue has not been preserved for appellate review, and we decline to review it in the interest of justice. Were we to review this claim, we would find that defendant was not prejudiced by the court’s failure to issue such instruction sua sponte.

We perceive no abuse of sentencing discretion. Concur— Nardelli, J. P., Tom, Lemer, Mazzarelli and Friedman, JJ.