People v. Olewine

164 A.D.2d 971, 559 N.Y.S.2d 854, 1990 N.Y. App. Div. LEXIS 16833

Opinion

Judgment unanimously affirmed. Memorandum: The statements of the codefendant, made to others in the presence of the defendant and not denied by her, were properly admitted into evidence (see, People v Baldassara, 151 AD2d 1004, lv denied 74 NY2d 845; People v Lord, 103 AD2d 1032, 1033). By failing to raise the argument that the acquittal on the charge of felony murder was inconsistent with the conviction on the charge of burglary in the second degree before the jury was discharged, defendant has failed to preserve that issue for review (see, People v Alfaro, 66 NY2d 985, 987). That argument is without merit because the jury’s determination that the affirmative defense to felony murder had been established does not negate an essential element of the charge of burglary in the second degree (see, People v Tucker, 55 NY2d 1, 7). Upon our independent review of the record, we find that the evidence is sufficient to support the verdict and that the verdict is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490). (Appeal from judgment of Erie County Court, McCarthy, J.—burglary, second degree.) Present—Callahan, J. P., Doerr, Denman, Lawton and Davis, JJ.