People v. Williams

190 A.D.2d 590, 593 N.Y.S.2d 789, 1993 N.Y. App. Div. LEXIS 1538

Opinion

— Judgment, Supreme Court, Bronx County (Lawrence Tonnetti, J.), rendered March 21, 1991, convicting defendant after a jury trial of burglary, first degree, and sentencing him as a second violent felony offender to a term of IV2 to 15 years, and order of the same court entered May 30, 1991, denying defendant’s motion to vacate the judgment, unanimously affirmed.

Defendant failed to seek a mistrial or other curative relief on the basis of the court’s marshalling of the evidence and thus his objection thereto is unpreserved (cf., People v Lewis, 64 NY2d 1031), and in view of the overwhelming evidence of guilt, we decline to review in the interest of justice (People v Alexander, 153 AD2d 507, 509, affd 75 NY2d 979).

Nor did defendant preserve any challenge to the court’s supplemental instructions on burglary (People v Gruttola, 43 NY2d 116, 123), and we decline to review his present claim in the interest of justice.

Since defendant submitted only a hearsay affidavit in support of his motion to vacate the judgment (People v Salaam, 187 AD2d 363; cf , People v Smith, 187 AD2d 365), and failed to exercise sufficient due diligence to preserve an adequate record prior to sentence (CPL 440.10 [3] [a]), and in view of the court’s grant of leave to renew the application upon submission of an appropriate affidavit, an opportunity defendant did not pursue, we find no basis to reverse the order summarily denying the motion. The factors which we found to have provided a basis for ordering a hearing in Smith pursuant to CPL 330.40, are not present here. Concur — Murphy, P. J., Carro, Kupferman, Asch and Kassal, JJ.