| People v Clarke |
| 2009 NY Slip Op 06444 [65 AD3d 1055] |
| September 8, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JasonClarke, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Keith Dolan ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Brennan,J.), rendered September 27, 2005, convicting him of robbery in the first degree and burglary inthe second 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 hisconviction for burglary in the second degree is unpreserved for appellate review because hefailed to move for a trial order of dismissal (see CPL 290.10, 470.05 [2]; People v Hawkins, 11 NY3d 484,492 [2008]; People v Howard, 50AD3d 823 [2008]; People vDowling, 28 AD3d 788 [2006]). In any event, viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that itwas legally sufficient to establish the defendant's guilt of burglary in the second degree beyond areasonable doubt (see People vMcKinney, 46 AD3d 705 [2007]; People v Bopp, 151 AD2d 590 [1989]).Moreover, upon our independent review pursuant to CPL 470.15 (5), we are satisfied that theverdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
Furthermore, the defendant's contention that the court erred in allowing a detective to testifythat he arrested the defendant after a conversation with an accomplice who did not testify at trialis unpreserved for appellate review (see CPL 470.05 [2]; People v Reynolds, 46 AD3d 845[2007]; People v Martin, 261 AD2d 488 [1999]; People v Cummings, 109 AD2d748 [1985]). In any event, any error was harmless (see People v Crimmins, 36 NY2d 230[1975]; People v Williams, 60AD3d 709 [2009]; People vMack, 14 AD3d 517 [2005]; People v Latta, 295 AD2d 449 [2002]; Peoplev Elliott, 256 AD2d 418 [1998]).
The defendant's challenges to remarks made by the prosecutor during summation areunpreserved for appellate review because the defendant either failed to object to the remarks ormade only general objections, and did not request further curative instructions or move for amistrial after the court sustained an objection and issued a curative instruction (see CPL470.05 [2]; People v Boyce, 54AD3d 1052 [2008]; People vBermudez, 36 AD3d 928 [2007]; People v Robinson, 281 AD2d 564 [2001]). Inany event, the [*2]challenged remarks either were responsive todefense counsel's summation (seePeople v Rhodes, 11 AD3d 487 [2004]), constituted fair comment on the evidence (see People v Arnold, 60 AD3d960 [2009]), or were harmless error (see People v Crimmins, 36 NY2d 230 [1975]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contention is without merit. Rivera, J.P., Miller, Balkin andAustin, JJ., concur.