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People v. Joseph

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


June 5, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
RAYMOND E. JOSEPH, III, DEFENDANT-APPELLANT. (APPEAL NO. 1.)

Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered July 9, 2007. The judgment convicted defendant, upon a jury verdict, of burglary in the third degree.

PRESENT: MARTOCHE, J.P., SMITH, FAHEY, CARNI, AND GREEN, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum

Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the third degree (Penal Law § 140.20). The evidence, viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621), is legally sufficient to establish that defendant entered the building with the intent to commit a crime therein (see People v Gates, 170 AD2d 971, lv denied 78 NY2d 922). Defendant's further challenges to the legal sufficiency of the evidence are not preserved for our review (see People v Gray, 86 NY2d 10, 19). Viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495). Defendant failed to preserve for our review his contentions that County Court's Sandoval ruling constituted an abuse of discretion (see People v Robles, 38 AD3d 1294, 1295, lv denied 8 NY3d 990), and that he was denied a fair trial by the prosecutor's allegedly improper remarks on summation (see People v Searles, 28 AD3d 1205, lv denied 7 NY3d 817). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Finally, the sentence is not unduly harsh or severe.

20090605

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