PEOPLE v. NEARY (2008)

 Defendant appeals from a judgment convicting him upon a jury verdict of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25[2] ).   We reject defendant's contention that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672), and defendant made only a general motion for a trial order of dismissal and thus failed to preserve for our review his challenge to the legal sufficiency of the evidence (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).

 We further reject the contention of defendant that County Court improperly sentenced him as a second felony offender.   When the court asked whether the allegations in the CPL 400.21(2) statement filed by the prosecutor were true, defendant chose to exercise his Fifth Amendment rights and did not answer that question.   The election by defendant to remain silent “does not negate the opportunity accorded him to controvert [the statement]” (People v. Tumminia, 101 A.D.2d 605, 606, 474 N.Y.S.2d 855), and “[u]ncontroverted allegations in the statement shall be deemed to have been admitted by the defendant” (CPL 400.21[3] ).   Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: