| People v Brown |
| 2012 NY Slip Op 08542 [101 AD3d 895] |
| December 12, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Christopher Brown, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Hae Jin Liu, Steven A. Bender, andRichard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Wetzel, J., at trial; Lorenzo, J., at sentencing), rendered July 20, 2011, convicting him ofburglary in the second degree and criminal mischief in the third degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is modified, on the law, by vacating the conviction of burglary inthe second degree and the sentence imposed thereon, and dismissing that count of the indictment;as so modified, the judgment is affirmed.
The defendant argues that the evidence of his guilt of burglary in the second degree waslegally insufficient since the People failed to prove that he entered the dwelling of thecomplainants. We agree. A person is guilty of burglary in the second degree when he or sheknowingly enters or remains unlawfully in a building with the intent to commit a crime therein,and the building is a dwelling (see Penal Law § 140.25 [2]). Entry is establishedwhen the person or any part of his or her body intrudes within the building (see People vKing, 61 NY2d 550 [1984]; People v Daye, 150 AD2d 481 [1989]). Here, the Peopleproved that the defendant broke a set of doors and locks at the complainants' dwelling, but failedto present any evidence showing that any part of the defendant's body entered the dwelling. Evenviewed in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620[1983]), the evidence was legally insufficient to permit a rational juror to conclude that thedefendant committed burglary. Accordingly, the count charging the defendant with burglary inthe second degree must be dismissed.
Further, on appeal, the defendant contends that the Supreme Court erred in imposingrestitution in the amount of replacement costs rather than repair costs. However, since thedefendant failed to request a restitution hearing, and did not object to the amount of restitution hewas required to pay, his present claims regarding the imposition of restitution are unpreserved forappellate review (see People v Horne, 97 NY2d 404, 414 n 3 [2002]; People v Haylett, 100 AD3d 774[2d Dept 2012]; People v Francis,82 AD3d 1263 [2011]; People vNelson, 77 AD3d 973 [2010]; People v Harris, 72 AD3d 1110 [2010]), and we decline to exerciseour interest of justice jurisdiction to review these claims.[*2]
In addition, there is no merit to the defendant's contentionthat the Supreme Court erred in its Sandoval ruling (see People v Sandoval, 34NY2d 371 [1974]). "[T]he extent to which the prosecution should be allowed to impeach thecredibility of a defendant is a matter that is generally left to the sound discretion of the trialcourt" (People v Murad, 55 AD3d754, 755 [2008] [internal quotation marks omitted]; see People v Bennette, 56 NY2d142, 146 [1982]; People v Carrasquillo, 204 AD2d 735, 735 [1994]; People vJohnston, 186 AD2d 822, 822 [1992]). Here, the Supreme Court's Sandovalcompromise, permitting the People to inquire only whether the defendant had been convictedof five felonies, but precluding any questioning about the underlying facts, avoided any undueprejudice to the defendant and represented a provident exercise of the court's discretion (see People v Murad, 55 AD3d 754[2008]; People v Jamison, 303 AD2d 603, 603 [2003]; People v Carrasquillo,204 AD2d at 735).
The defendant's remaining contentions are without merit. Dillon, J.P., Austin, Sgroi andCohen, JJ., concur.