People v. Lopez

305 A.D.2d 269, 759 N.Y.S.2d 320, 2003 N.Y. App. Div. LEXIS 5712

Opinion

Judgment, Supreme Court, New York County (James Yates, J.), rendered September 21, 2001, convicting defendant, after a jury trial, of burglary in the second degree and possession of burglar’s tools, and sentencing him, as a persistent violent felony offender, to concurrent terms of 17 years to life and 1 year, respectively, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Bleakley, 69 NY2d 490 [1987]). The evidence established that defendant entered the apartment building in question unlawfully, and that he did so with intent to commit a crime in that building. The fact that the jury acquitted defendant of other charges, and reached yet another verdict as to the codefendant, does not warrant a different result (see People v Rayam, 94 NY2d 557 [2000]).

Defendant’s challenges to the People’s summation are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find that the challenged remarks constituted fair comment on the evidence, and reasonable inferences to be drawn therefrom, in response to defense arguments, and that the summation did not deprive defendant of a fair trial (see People v Overlee, 236 AD2d 133 [1997], ;lv denied 91 NY2d 976 [1998]; People v D’Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]).

We perceive no basis for reducing the sentence. Given defendant’s extensive criminal record, his 17 years to life sentence was not unconstitutional as applied (see Ewing v California, — US —, 123 S Ct 1179 [2003]; People v Thompson, 83 NY2d 477 [1994]).

Defendant’s remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them. Concur — Tom, J.P., Mazzarelli, Rosenberger, Ellerin and Williams, JJ.