People v. Pitkin

267 A.D.2d 1021, 701 N.Y.S.2d 198, 1999 N.Y. App. Div. LEXIS 13774

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 1999
• Status: Published

Opinion

—Judgment unanimously affirmed. Memorandum: We reject defendant’s contention that the testimony of the accomplice was not sufficiently corroborated (see, CPL 60.22; People v La Porte, 217 AD2d 821, 821-822). The evidence is legally sufficient to support the conviction (see, People v Yopp, 142 AD2d 982, 983, lv denied 72 NY2d 1051), and the verdict is not contrary to the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495). Defendant’s contention that the verdict is repugnant is not preserved for our review (see, CPL 470.05 [2]; People v Alfaro, 66 NY2d 985, 987), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). The evidence, the law and the circumstances of this case, viewed in totality and as of the time of the representation, establish that defendant received meaningful representation (see, People v Baldi, 54 NY2d 137, 147). By failing to make a pretrial motion to dismiss the indictment based upon the discrepancy between the burglary charge listed in the cover sheet and the charge in the first count of the indictment (see, CPL 210.20 [1] [a]; 210.25), defendant waived his contention that the indictment is facially defective (see, People v Iannone, 45 NY2d 589, 600; see also, People v Dumblewski, 61 AD2d 875, 876). The sentence is not unduly harsh or severe. Defendant’s remaining contention is not preserved for our review (see, CPL 470.05 [2]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). (Appeal from Judgment of Jefferson County Court, Clary, J. — Burglary, 1st Degree.) Present — Green, J. P., Lawton, Pigott, Jr., Scudder and Callahan, JJ.