PEOPLE v. JONES (2007)

Judgment, Supreme Court, New York County (James A. Yates, J.), rendered January 14, 2005, convicting defendant, after a jury trial, of burglary in the second degree, attempted burglary in the second degree and possession of burglar's tools, and sentencing him, as a persistent violent felony offender, to an aggregate term of 16 years to life, unanimously affirmed.

 Since defendant did not make the specific arguments before the trial court that he raises on appeal, his present challenges to the legal sufficiency of the evidence are unpreserved (People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ), and we decline to review them in the interest of justice.   Were we to review these claims, we would find that the verdict was based on legally sufficient evidence.   Although the occupants of the burglarized apartment did not testify, there was sufficient evidence, including a videotape of the scene and testimony from the occupants' grandson, who was familiar with his grandparents' living arrangements, to establish that the apartment was “usually occupied by a person lodging therein at night,” and thus a “dwelling” under Penal Law § 140.00(3).   The fact that defendant was found in a portion of the apartment used by the occupants as a home office is irrelevant to defendant's criminal liability.

Defendant's remaining sufficiency arguments and his challenges to the court's jury charge and to remarks made by the court and prosecutor during jury selection are likewise unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would find them without merit.