PEOPLE v. DIAZ (2008)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Spires, J.), rendered January 18, 2006, convicting him of burglary in the second degree and criminal mischief in the fourth degree, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's challenge to the legal sufficiency of the evidence supporting his conviction of burglary in the second degree on the ground that his intent to commit this crime was not established is unpreserved for appellate review (see CPL 470.05[2];  People v. Finger, 95 N.Y.2d 894, 716 N.Y.S.2d 34, 739 N.E.2d 290;  People v. Gray, 86 N.Y.2d 10, 19-21, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Webber, 184 A.D.2d 540, 584 N.Y.S.2d 165).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of burglary in the second degree and criminal mischief in the fourth degree beyond a reasonable doubt (see Penal Law §§ 140.25[2], 145.00[1] ).   The evidence of the acts committed by the defendant, including his unlawful entry, through a window, into a locked management office of an apartment building at approximately 4:00 A.M., followed by his apprehension inside the basement of the building a short time later, and the false excuse he provided to the police to explain his presence therein, constituted proof of his criminal intent (see People v. Jackson, 46 A.D.3d 1408, 847 N.Y.S.2d 800, lv. denied 10 N.Y.3d 841, 859 N.Y.S.2d 400, 889 N.E.2d 87;  People v. Flores, 303 A.D.2d 597, 598, 756 N.Y.S.2d 491;  People v. Monge, 248 A.D.2d 558, 558-559, 670 N.Y.S.2d 200).   Moreover, upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The defendant's remaining contentions are without merit.