PEOPLE v. JACKSON (2007)

 Defendant appeals from a judgment convicting him, upon a jury verdict, of burglary in the second degree (Penal Law § 140.25[2] ) and criminal mischief in the fourth degree (§ 145.00[1] ).   Defendant failed to preserve for our review his contention that the evidence is legally insufficient to establish his intent to commit the crimes of which he was convicted (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, his contention is without merit.   According to the testimony of the victim at trial, she heard loud banging and the sound of glass shattering in her apartment in the early morning, and defendant then entered her bedroom and punched her in the face and head.   The testimony of the victim and her neighbors established that her front door was broken.   The jury was entitled to infer therefrom that defendant entered the apartment of the victim with the intent to assault her, and that he intended to break the door in order to gain entry into the apartment (see generally People v. Gianni, 303 A.D.2d 1012, 756 N.Y.S.2d 688, lv. denied 100 N.Y.2d 581, 764 N.Y.S.2d 391, 796 N.E.2d 483).   Also contrary to defendant's contention, the verdict is not 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).

 Defendant failed to object to County Court's ultimate Sandoval ruling and thus failed to preserve for our review his contention that the court's Sandoval ruling constitutes an abuse of discretion (see People v. Alston, 27 A.D.3d 1141, 1141-1142, 811 N.Y.S.2d 251, lv. denied 6 N.Y.3d 892, 817 N.Y.S.2d 627, 850 N.E.2d 674), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6][a] ).   Defendant also failed to preserve for our review his contention that he was deprived of a fair trial by prosecutorial misconduct on summation (see People v. Williams, 43 A.D.3d 1336, 845 N.Y.S.2d 768;  People v. Wilson, 34 A.D.3d 1276, 823 N.Y.S.2d 814, lv. denied 8 N.Y.3d 886, 832 N.Y.S.2d 498, 864 N.E.2d 628).   In any event, the prosecutor's remarks were fair response to defense counsel's summation (see Williams, 43 A.D.3d at 1337, 845 N.Y.S.2d 768;  People v. Melendez, 11 A.D.3d 983, 984, 782 N.Y.S.2d 893, lv. denied 4 N.Y.3d 888, 798 N.Y.S.2d 734, 831 N.E.2d 979).   Finally, the sentence is not unduly harsh or severe.

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

MEMORANDUM: