| People v Mendez |
| 2008 NY Slip Op 04729 [51 AD3d 948] |
| May 20, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Cynthia Mendez, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C.Abbot, and Christopher Barnett of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Knopf, J.),rendered July 19, 2006, convicting her of burglary in the second degree, assault in the seconddegree, and criminal mischief in the fourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support herconviction of assault in the second degree is unpreserved for appellate review (see CPL470.05; People v Finger, 95 NY2d 894, 895 [2000]; People v Gray, 86 NY2d 10,19 [1995]; People v Soto, 8 AD3d683, 684 [2004]). In any event, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legallysufficient to support the conviction. Moreover, upon the exercise of our factual review power(see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against the weightof the evidence (see People vRomero, 7 NY3d 633 [2006]).
Contrary to the defendant's contention, the Supreme Court correctly declined to submit to thejury the charge of criminal trespass in the second degree as a lesser-included offense of burglaryin the second degree, since there was no reasonable view of the evidence that the defendantcommitted the lesser offense without having committed the greater offense (see CPL300.50 [1]; People v Scarborough, 49 NY2d 364 [1980]; People v Murdaugh, 38 AD3d918, 919 [2007]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 83[1982]). Mastro, J.P., Skelos, Lifson and Leventhal, JJ., concur.