| People v Jackson |
| 2007 NY Slip Op 10279 [46 AD3d 1408] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Ronald T.Jackson, Appellant. |
—[*1]
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered April10, 2006. The judgment convicted defendant, upon a jury verdict, of burglary in the seconddegree and criminal mischief in the fourth degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofburglary in the second degree (Penal Law § 140.25 [2]) and criminal mischief in the fourthdegree (§ 145.00 [1]). Defendant failed to preserve for our review his contention that theevidence is legally insufficient to establish his intent to commit the crimes of which he wasconvicted (see People v Gray, 86 NY2d 10, 19 [1995]). In any event, his contention iswithout merit. According to the testimony of the victim at trial, she heard loud banging and thesound of glass shattering in her apartment in the early morning, and defendant then entered herbedroom and punched her in the face and head. The testimony of the victim and her neighborsestablished that her front door was broken. The jury was entitled to infer therefrom that defendantentered the apartment of the victim with the intent to assault her, and that he intended to breakthe door in order to gain entry into the apartment (see generally People v Gianni, 303AD2d 1012 [2003], lv denied 100 NY2d 581 [2003]). Also contrary to defendant'scontention, the verdict is not against the weight of the evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]).
Defendant failed to object to County Court's ultimate Sandoval ruling and thus failedto preserve for our review his contention that the court's Sandoval ruling constitutes anabuse of discretion (see People vAlston, 27 AD3d 1141, 1141-1142 [2006], lv denied 6 NY3d 892 [2006]), andwe decline to exercise our power to review that contention as a matter of discretion in the interestof justice (see CPL 470.15 [6] [a]). Defendant also failed to preserve for our review hiscontention that he was deprived of a fair trial by prosecutorial misconduct on summation (see People v Williams, 43 AD3d1336 [2007]; People v Wilson,34 AD3d 1276 [2006], lv denied 8 NY3d 886 [2007]). In any event, the prosecutor'sremarks were fair response to defense counsel's summation (see Williams, 43 AD3d at1337; People v Melendez, 11 AD3d983, 984 [2004], lv denied 4 NY3d 888 [2005]). Finally, the sentence is not undulyharsh or severe. Present—Hurlbutt, J.P., Smith, Centra, Green and Pine, JJ.