PEOPLE v. WASHINGTON (2006)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered February 17, 2004, convicting him of burglary in the second degree and robbery in the third degree, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that the evidence was legally insufficient to establish his guilt of the crime of burglary in the second degree, specifically, that the People failed to prove that he entered or remained unlawfully in the complainant's building (see Penal Law § 140.00[5];  § 140.25[2] ).   This contention is unpreserved for appellate review (see People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919).   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 beyond a reasonable doubt.   The prosecution adduced sufficient evidence from which a rational fact-finder could infer that the defendant entered the building unlawfully with the intent to commit a crime therein (see People v. Mitchell, 254 A.D.2d 830, 679 N.Y.S.2d 761;  People v. Harrison, 151 A.D.2d 778, 543 N.Y.S.2d 108;  People v. Piro, 121 A.D.2d 748, 504 N.Y.S.2d 163;  People v. Thompson, 116 A.D.2d 377, 501 N.Y.S.2d 381).   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt of the crime of burglary in the second degree was not against the weight of the evidence (see CPL 470.15[5] ).

The defendant's contention that his adjudication as a persistent violent felony offender violated his right to a jury trial pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 is unpreserved for appellate review and, in any event, is without merit (see People v. Rivera, 5 N.Y.3d 61, 800 N.Y.S.2d 51, 833 N.E.2d 194, cert. denied 546 U.S. 984, 126 S.Ct. 564, 163 L.Ed.2d 473;  People v. Rosen, 96 N.Y.2d 329, 335, 728 N.Y.S.2d 407, 752 N.E.2d 844, cert. denied 534 U.S. 899, 122 S.Ct. 224, 151 L.Ed.2d 160;  People v. Black, 23 A.D.3d 490, 803 N.Y.S.2d 912).