| People v Neary |
| 2008 NY Slip Op 08907 [56 AD3d 1224] |
| November 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Robert M.Neary, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.), renderedAugust 11, 2006. The judgment convicted defendant, upon a jury verdict, of attempted burglaryin the second degree.
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 ofattempted burglary in the second degree (Penal Law §§ 110.00, 140.25 [2]). Wereject defendant's contention that the verdict is against the weight of the evidence (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]), and defendant made only a generalmotion for a trial order of dismissal and thus failed to preserve for our review his challenge to thelegal sufficiency of the evidence (see People v Gray, 86 NY2d 10, 19 [1995]).
We further reject the contention of defendant that County Court improperly sentenced him asa second felony offender. When the court asked whether the allegations in the CPL 400.21 (2)statement filed by the prosecutor were true, defendant chose to exercise his Fifth Amendmentrights and did not answer that question. The election by defendant to remain silent "does notnegate the opportunity accorded him to controvert [the statement]" (People v Tumminia,101 AD2d 605, 606 [1984]), and "[u]ncontroverted allegations in the statement shall be deemedto have been admitted by the defendant" (CPL 400.21 [3]). Finally, the sentence is not undulyharsh or severe. Present—Scudder, P.J., Martoche, Centra, Lunn and Gorski, JJ.