People v. Rodriguez

200 A.D.2d 775, 607 N.Y.S.2d 102

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cohen, J.), rendered February 19, 1992, convicting him of burglary in the second degree and petit larceny, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

At approximately 10:00 a.m. on July 18, 1991, the defendant entered the apartment of a 93-year-old stranger, the complainant herein, without permission. Once inside, the defendant took a bottle of soda from the complainant’s refrigerator and then used his bathroom, before exiting the apartment. No words were exchanged between the defendant and the complainant during this time. For these acts, the jury convicted the defendant of burglary in the second degree and petit larceny.

The defendant contends that his conviction for burglary must be reversed because the evidence was legally insufficient to establish that he had the requisite intent to commit a crime when he entered the premises. The defendant offers this specific ground for dismissal for the first time on appeal and has therefore failed to preserve the issue for appellate review (CPL 470.05 [2]; People v Udzinski, 146 AD2d 245). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15 [5]).

The defendant’s sentence was not excessive.

We have examined the defendant’s remaining contentions and find them to be without merit. Sullivan, J. P., Rosenblatt, Pizzuto and Joy, JJ., concur.