| People v Romero |
| 2011 NY Slip Op 04526 [84 AD3d 695] |
| May 31, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Maximo Romero, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Sheila L. Bautista of counsel), forrespondent.
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered June 25, 2009,convicting defendant, after a nonjury trial, of burglary in the second degree and criminal mischiefin the third degree, and sentencing him, as a second violent felony offender, to concurrent termsof seven years and 2 to 4 years, respectively, unanimously affirmed.
Defendant did not preserve his claim that, in order to prove burglary in this case, the Peoplewere required to prove defendant intended to commit a sexual assault, and we decline to reviewit in the interest of justice. As an alternative holding, we also reject it on the merits. Theindictment charged defendant with entering a store with intent to commit an unspecified crimetherein, and the People never limited their theory of the case to any particular intended crime(see People v Bess, 107 AD2d 844, 846 [1985]). In any event, defendant repeatedlyannounced his intention to sexually assault two girls hiding in the store.
Defendant's conviction of criminal mischief in the third degree was also supported by legallysufficient evidence. The evidence supports the conclusion that the reasonable cost of repairingthe damaged property (see People vGarcia, 29 AD3d 255, 263 [2006], lv denied 7 NY3d 789 [2006]) exceeded$250. Defendant's argument concerning the element of intent to damage property is unpreserved,and we decline to review it in the interest of justice. As an alternative holding, we also reject iton the merits.
Defendant requested that the court consider the lesser included offenses of criminal trespassin the second degree and criminal mischief in the fourth degree. However, he did not set forthany basis for those requests. Accordingly, his present arguments are unpreserved (see e.g.People v Liner, 262 AD2d 250 [1999], lv denied 93 NY2d 1021 [1999]), and wedecline to [*2]review them in the interest of justice. As analternative holding, we find that neither request was supported by a reasonable view of theevidence, when viewed in a light most favorable to defendant. Concur—Mazzarelli, J.P.,Friedman, Catterson, Manzanet-Daniels and Rom�n, JJ.