People v Bones

2008 NY Slip Op 05087

Decided on June 3, 2008

Appellate Division, Second Department

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

Decided on June 3, 2008
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
PETER B. SKELOS, J.P.
DAVID S. RITTER
ANITA R. FLORIO
THOMAS A. DICKERSON, JJ.
2006-00383
(Ind. No. 05-00481)






Mitchell J. Baker, White Plains, N.Y., for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie
Sapakoff, Richard Longworth Hecht,
and Anthony J. Servino of counsel), for
respondent.


DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Westchester County (Adler, J.), rendered December 15, 2005, convicting him of burglary in the third degree and petit larceny, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant's guilt of burglary in the third degree beyond a reasonable doubt. Contrary to the defendant's contention, the evidence was sufficient to prove that he entered the complainant's store unlawfully (see Penal Law § 140.20).

The defendant's contention that the trial court erred in allowing a police detective to testify that he had grown up in the area and was familiar with the defendant is unpreserved for appellate review (see CPL 470.05). In any event, the trial court properly permitted the testimony as the evidence was relevant to the issue of identity and did not necessarily implicate the defendant in prior uncharged criminal conduct (see People v Reid, 259 AD2d 505, 506).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).

The defendant's contention that the mandatory surcharge should have been waived is unpreserved for appellate review and, in any event, is without merit (see CPL 420.35[2]; People v Domin, 13 AD3d 391, 392; People v Owens, 10 AD3d 619).
SKELOS, J.P., RITTER, FLORIO and DICKERSON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court