The People, etc., respondent, v. Pedro Troche, appellant.

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

The People, etc., respondent, v. Pedro Troche, appellant.

2008-07019 2008-07020 (Ind.Nos. 07-351, 07-832)

Decided: February 22, 2011

MARK C. DILLON, J.P. ANITA R. FLORIO DANIEL D. ANGIOLILLO THOMAS A. DICKERSON, JJ. Greenwald Law Offices, Chester, N.Y. (David L. Gove of counsel), for appellant. Francis D. Phillips II, District Attorney, Goshen, N.Y. (Robert H. Middlemiss and Andrew R. Kass of counsel), for respondent.

Argued-October 12, 2010

DECISION & ORDER

Appeals by the defendant from two judgments of the County Court, Orange County (Freehill, J.), both rendered June 26, 2008, convicting him of burglary in the second degree, criminal possession of a weapon in the fourth degree, and aggravated harassment in the second degree under Indictment No. 07-351, and assault in the third degree and criminal contempt in the second degree (three counts) under Indictment No. 07-832, upon a jury verdict, and sentencing him to a determinate term of 10 years of imprisonment on the conviction of burglary in the second degree, a determinate term of 1 year of imprisonment on the conviction of criminal possession of a weapon in the fourth degree, a determinate term of 1 year of imprisonment on the conviction of aggravated harassment in the second degree, a determinate term of 1 year of imprisonment on the conviction of assault in the third degree, to be served concurrently, and concurrent determinate terms of 1 year of imprisonment on each of the convictions of criminal contempt in the second degree to be served consecutively with the sentences on the other convictions.

ORDERED that the judgments are modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed on the conviction of burglary in the second degree from a determinate term of 10 years of imprisonment to a determinate term of 71/212 years of imprisonment and by providing that the defendant's 1-year sentences on the convictions of criminal contempt in the second degree shall run concurrently to the sentences imposed on the other convictions;  as so modified, the judgments are affirmed.

Contrary to the defendant's contention, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621), we find that it was legally sufficient to establish his guilt of burglary in the second degree (see People v. Liotta, 274 A.D.2d 751, 753;  People v. Morgan, 259 A.D.2d 771, 772-773;  People v. Jordan, 193 A.D.2d 890, 894;  People v. Barak, 185 A.D.2d 278, 279;  People v. Quinones, 173 A.D.2d 395, 396;  People v. Bell, 131 A.D.2d 859, 861;  cf.  People v. Tennant, 285 A.D.2d 817, 819;  People v. McCargo, 226 A.D.2d 480, 481;  People v. Uloth, 201 A.D.2d 926, 927;  People v. Insogna, 86 A.D.2d 979, 979).   Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt on this count was not against the weight of the evidence (see People v. Romero, 7 NY3d 633;  People v. Jackson, 38 AD3d 1052, 1054;  People v. Liotta, 274 A.D.2d at 753;  People v. Giannizzero, 209 A.D.2d 635, 636).

The defendant's contention that his conviction of assault in the third degree is based upon legally insufficient evidence is unpreserved for appellate review (see CPL 470.05;  People v. Xavier V., 10 AD3d 427, 427).

Insofar as the defendant's allegations of ineffective assistance of counsel are based upon matter which is dehors the record, they are not reviewable on this appeal (see People v. Tillman, 74 AD3d 1251;  People v. Dunbar, 74 AD3d 1227).   To the extent that the record permits review of the defendant's claim, the defendant was not deprived of the effective assistance of counsel (see Strickland v. Washington, 466 U.S. 668;  People v. Henry, 95 N.Y.2d 563;  People v. Benevento, 91 N.Y.2d 708).

The sentences imposed were excessive to the extent indicated herein.

The defendant's remaining contentions are without merit.

DILLON, J.P., FLORIO, ANGIOLILLO and DICKERSON, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

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