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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Abraham CRUZ, Defendant-Appellant.

Decided: February 27, 2001

NARDELLI, J.P., WILLIAMS, TOM, ANDRIAS and BUCKLEY, JJ. Frank Glaser, for Respondent. Steven N. Feinman, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Charles Solomon, J.), rendered July 6, 1998, convicting defendant, after a jury trial, of two counts of attempted burglary in the second degree, and sentencing him, as a persistent felony offender, to concurrent terms of 15 years to life, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   Defendant's intent to commit a crime was clearly established by evidence that defendant was observed on the fire escapes of two buildings, opening or attempting to open the windows of several apartments (see, People v. Castillo, 47 N.Y.2d 270, 278, 417 N.Y.S.2d 915, 391 N.E.2d 997).   There was no non-criminal explanation for defendant's behavior.

The record fails to support defendant's claim that the court delegated to a court officer a role in screening prospective jurors who expressed an inability to serve.   On the contrary, the record establishes that all such screening was in fact conducted by the court.

The court properly exercised its discretion in sentencing defendant as a persistent felony offender.