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People v. Cummings

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


October 22, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
ELIJAH CUMMINGS, DEFENDANT-APPELLANT.

Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered March 19, 2007, convicting defendant, after a jury trial, of burglary in the second degree and two counts of criminal possession of a weapon in the third degree, and sentencing him, as a persistent violent felony offender, to an aggregate term of 20 years to life, unanimously affirmed.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Friedman, J.P., McGuire, Moskowitz, Acosta, DeGrasse, JJ.

1640/06, 4158/06

Defendant, who was convicted of burglary in connection with his theft of loaded pistols and other property from a police station locker room, argues that the evidence is legally insufficient to support a second-degree burglary conviction because the police station was not a dwelling (see Penal Law § 140.00[3], § 140.25[2]). This contention is unpreserved and we decline to review it in the interest of justice. We note in this regard that defendant not only failed to challenge the sufficiency of the evidence on the dwelling issue but, after asking for submission of criminal trespass as a lesser included offense, did not dispute statements by the court and prosecutor that the applicable trespass charge would be second-degree trespass (Penal Law § 140.15) because the police station was a dwelling.

The court's Sandoval ruling balanced the appropriate factors and was a proper exercise of discretion (see People v Hayes, 97 NY2d 203 [2002]; People v Walker, 83 NY2d 455, 458-459 [1994]; People v Pavao, 59 NY2d 282, 292 [1983]). The convictions at issue were highly probative of defendant's credibility, and their probative value outweighed any prejudicial effect.

By failing to object, or by failing to request further relief after the court took curative action, defendant has failed to preserve his present challenges to the People's summation, and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1998]; People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]).

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20091022

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