People v Green

People v Green 2006 NY Slip Op 09788 [35 AD3d 1197] December 22, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 14, 2007

The People of the State of New York, Respondent, v Derrick Green, Appellant.

—[*1]Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), rendered September 19, 2003. The judgment convicted defendant, upon a jury verdict, of burglary in the third degree, criminal mischief in the third degree and petit larceny.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the third degree (Penal Law § 140.20), criminal mischief in the third degree (§ 145.05 [2]), and petit larceny (§ 155.25). Contrary to defendant's contention, the verdict is not against the weight of the evidence based upon discrepancies in the accounts of the People's witnesses concerning the timing of events (see People v Cantres, 238 AD2d 56, 60-61 [1997], lv denied 91 NY2d 971 [1998]; see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Defendant failed to preserve for our review his further contention concerning a juror's note-taking, and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see People v Valiente, 309 AD2d 562 [2003], lv denied 1 NY3d 602 [2004]). Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J., Martoche, Centra and Green, JJ.