PEOPLE v. POLANCO (2008)

Judgment, Supreme Court, New York County (Edwin Torres, J.), rendered March 14, 2006, convicting defendant, after a jury trial, of burglary in the second degree and robbery in the third degree, and sentencing him to concurrent terms of 3 1/212 years and 1 to 3 years, respectively, unanimously affirmed.

The evidence of defendant's unlawful entry into the victim's building was legally sufficient.   Although defendant argues that a surveillance video shows the victim permitting defendant to enter the building, the victim testified that he did not open the door for defendant, but he held it open to prevent it from hitting himself.

Defendant's argument that the evidence failed to establish his intent to commit a crime at the time he entered the building is unpreserved and we decline to review it in the interest of justice.   As an alternative holding, we also reject it on the merits.   The evidence supports a reasonable inference that defendant followed the victim home and entered his building as part of a preconceived plan to rob him.

Defendant did not preserve any of his arguments, including constitutional claims, concerning the prosecutor's opening statement and summation and the court's main and supplementary jury charges, and we decline to review them in the interest of justice.   As an alternative holding, we find no basis for reversal.

We find that defendant received effective assistance of counsel under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).   Even if we were to find that trial counsel should have made the objections and arguments suggested by defendant on appeal, we would find that her failure to do so did not deprive defendant of a fair trial or cause him any prejudice (see People v. Caban, 5 N.Y.3d 143, 155-156, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005];  People v. Hobot, 84 N.Y.2d 1021, 1024, 622 N.Y.S.2d 675, 646 N.E.2d 1102 [1995];  compare People v. Turner, 5 N.Y.3d 476, 806 N.Y.S.2d 154, 840 N.E.2d 123 [2005] ).