People v Rivera

People v Rivera 2010 NY Slip Op 08968 [78 AD3d 1203] November 30, 2010 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2011

The People of the State of New York, Respondent,
v
Luis R. Rivera, Appellant.

—[*1] Thomas A. Kenniff, Mineola, N.Y., for appellant.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Donald Berk and Cristin N. Connell of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Berkowitz, J.), rendered April 2, 2009, convicting him of burglary in the third degree and criminal possession of stolen property in the fourth degree (11 counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon our independent review of the evidence pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).

The defendant contends that because the People's case rested solely on the theory that he unlawfully entered a medical office with an intent to commit a crime therein, the trial court erred in charging the jury on the portion of Penal Law § 140.20 concerning the alternate theory of "remain[ing] unlawfully" in a building, and that the trial court's subsequent corrective measures were insufficient to cure the error. The defendant's argument regarding the adequacy of the trial court's subsequent withdrawal of the erroneous charge and reading of the corrected one is unpreserved for appellate review (see People v Hicks, 301 AD2d 538 [2003]). In any event, the trial court's corrective measures were sufficient to obviate any prejudice to the defendant (see People v Agrelo-Travieso, 257 AD2d 514 [1999]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]). Skelos, J.P., Covello, Balkin and Sgroi, JJ., concur.