PEOPLE v. CUMMINGS

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

The PEOPLE of the State of New York, Respondent, v. Elijah CUMMINGS, Defendant-Appellant.

Decided: October 22, 2009

FRIEDMAN, J.P., McGUIRE, MOSKOWITZ, ACOSTA, DeGRASSE, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Eunice C. Lee of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Lindsey M. Kneipper of counsel), for respondent.

Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered March 19, 2007, convicting defendant, after a jury trial, of burglary in the second degree and two counts of criminal possession of a weapon in the third degree, and sentencing him, as a persistent violent felony offender, to an aggregate term of 20 years to life, unanimously affirmed.

 Defendant, who was convicted of burglary in connection with his theft of loaded pistols and other property from a police station locker room, argues that the evidence is legally insufficient to support a second-degree burglary conviction because the police station was not a dwelling (see Penal Law § 140.00[3], § 140.25[2] ).   This contention is unpreserved and we decline to review it in the interest of justice.   We note in this regard that defendant not only failed to challenge the sufficiency of the evidence on the dwelling issue but, after asking for submission of criminal trespass as a lesser included offense, did not dispute statements by the court and prosecutor that the applicable trespass charge would be second-degree trespass (Penal Law § 140.15) because the police station was a dwelling.

 The court's Sandoval ruling balanced the appropriate factors and was a proper exercise of discretion (see People v. Hayes, 97 N.Y.2d 203, 738 N.Y.S.2d 663, 764 N.E.2d 963 [2002];  People v. Walker, 83 N.Y.2d 455, 458-459, 611 N.Y.S.2d 118, 633 N.E.2d 472 [1994];  People v. Pavao, 59 N.Y.2d 282, 292, 464 N.Y.S.2d 458, 451 N.E.2d 216 [1983] ).   The convictions at issue were highly probative of defendant's credibility, and their probative value outweighed any prejudicial effect.

 By failing to object, or by failing to request further relief after the court took curative action, defendant has failed to preserve his present challenges to the People's summation, and we decline to review them in the interest of justice.   As an alternative holding, we find no basis for reversal (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998];  People v. D'Alessandro, 184 A.D.2d 114, 118-119, 591 N.Y.S.2d 1001 [1992], lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).

We perceive no basis for reducing the sentence.