| People v Roman |
| 2017 NY Slip Op 07463 [154 AD3d 969] |
| October 25, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Dennis Roman, Appellant. |
Clement Patti, White Plains, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (John J. Carmody and StevenA. Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Zambelli, J.), rendered December 8, 2015, convicting him of burglary in the first degree, assaultin the second degree, criminal obstruction of breathing, and endangering the welfare of a child,upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to establish his guilt ofburglary in the first degree is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484[2008]; People v Gray, 86 NY2d 10 [1995]). In any event, viewing the evidence in thelight most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), wefind that the evidence was legally sufficient to establish the defendant's guilt of that crime beyonda reasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15 (5), we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The defendant's contention that the trial court erred in precluding his expert from testifyingregarding the effects of the combined use of alcohol and PCP is unpreserved for appellate review(see CPL 470.05 [2]). In any event, the trial court providently exercised its discretion inprecluding such testimony as the defendant failed to lay a sufficient foundation for its admission(see People v Albanese, 84 AD3d1107 [2011]; People v Carey,67 AD3d 925 [2009]; People vCasper, 42 AD3d 887 [2007]; People v Banks, 33 AD3d 385 [2006]).
Further, the trial court did not err in refusing to give an intoxication charge to the jury(see Penal Law § 15.25). Viewing the evidence in the light most favorableto the defendant (see People vSirico, 17 NY3d 744 [2011]), we find that it was insufficient to allow a reasonableperson to entertain doubt as to the element of intent based on intoxication (see People v Beaty, 22 NY3d 918[2013]; People v Perry, 61 NY2d 849 [1984]; People v Golger, 126 AD3d 914 [2015]). Mastro, J.P., Sgroi,Cohen and Maltese, JJ., concur.