| People v Cummings |
| 2009 NY Slip Op 07510 [66 AD3d 571] |
| October 22, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Elijah Cummings, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Lindsey M. Kneipper of counsel), forrespondent.
Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered March 19, 2007,convicting defendant, after a jury trial, of burglary in the second degree and two counts ofcriminal possession of a weapon in the third degree, and sentencing him, as a persistent violentfelony offender, to an aggregate term of 20 years to life, unanimously affirmed.
Defendant, who was convicted of burglary in connection with his theft of loaded pistols andother property from a police station locker room, argues that the evidence is legally insufficientto support a second-degree burglary conviction because the police station was not a dwelling(see Penal Law § 140.00 [3]; § 140.25 [2]). This contention is unpreservedand we decline to review it in the interest of justice. We note in this regard that defendant notonly failed to challenge the sufficiency of the evidence on the dwelling issue but, after asking forsubmission of criminal trespass as a lesser included offense, did not dispute statements by thecourt and prosecutor that the applicable trespass charge would be second-degree trespass (PenalLaw § 140.15) because the police station was a dwelling.
The court's Sandoval ruling balanced the appropriate factors and was a properexercise of discretion (see People v Hayes, 97 NY2d 203 [2002]; People vWalker, 83 NY2d 455, 458-459 [1994]; People v Pavao, 59 NY2d 282, 292 [1983]).The convictions at issue were highly probative of defendant's credibility, and their probativevalue outweighed any prejudicial effect.
By failing to object, or by failing to request further relief after the court took curative action,defendant has failed to preserve his present challenges to the People's summation, and wedecline to review them in the interest of justice. As an alternative holding, we find no basis forreversal (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976[1998]; People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81NY2d 884 [1993]).
We perceive no basis for reducing the sentence. Concur—Friedman, J.P., McGuire,Moskowitz, Acosta and DeGrasse, JJ.