PEOPLE v. ADAM

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

The PEOPLE, etc., respondent, v. Terence R. ADAM, appellant.

Decided: April 29, 2008

WILLIAM F. MASTRO, J.P., DAVID S. RITTER, EDWARD D. CARNI, and RANDALL T. ENG, JJ. Lynn W.L. Fahey, New York, N.Y. (Michael Dang of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Anthea H. Bruffee, and Steven A. Mann of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered August 5, 2005, convicting him of burglary in the second degree and criminal trespass in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's contention that he was deprived of a fair trial by certain remarks made by the prosecutor during summation is unpreserved for appellate review since defense counsel failed to object or raised only a general objection to the remarks (see CPL 470.05[2];  People v. Carrieri, 49 A.D.3d 660, 854 N.Y.S.2d 427;  People v. Robbins, 48 A.D.3d 711, 850 N.Y.S.2d 912).   In any event, the challenged remarks either were a fair response to the defendant's summation (see People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885;  People v. Ferraro, 49 A.D.3d 550, 855 N.Y.S.2d 552), or constituted harmless error (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. Wilson, 49 A.D.3d 673, 854 N.Y.S.2d 150).   Furthermore, defense counsel's failure to object to the challenged remarks did not constitute ineffective assistance of counsel (see People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Robbins, 48 A.D.3d 711, 850 N.Y.S.2d 912;  People v. Gonzalez, 44 A.D.3d 790, 843 N.Y.S.2d 417).

 The defendant's argument that the People failed to establish, by legally sufficient evidence, his guilt of criminal trespass in the second degree because there was no evidence that he entered the subject dwelling is unpreserved for appellate review (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Brown, 29 A.D.3d 917, 814 N.Y.S.2d 542).   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 criminal trespass in the second degree beyond a reasonable doubt.   Contrary to the defendant's contention, the evidence established that he unlawfully entered the residence by accessing an enclosed area attached to the house (see People v. Rivera, 301 A.D.2d 787, 754 N.Y.S.2d 74;  People v. Adams, 212 A.D.2d 621, 623 N.Y.S.2d 139;  People v. Figueroa, 204 A.D.2d 972, 613 N.Y.S.2d 301;  People v. McCrea, 194 A.D.2d 742, 600 N.Y.S.2d 84).   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).

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