People v. Benjamin

Appeal from a judgment of the Supreme Court, Erie County (Ronald H. Tills, A.J.), rendered May 7, 2004. The judgment convicted defendant, upon a jury verdict, of burglary in the third degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the third degree (Penal Law § 140.20). The evidence is legally sufficient to support the conviction (see People v Horn, 302 AD2d 975 [2003], lv denied 100 NY2d 539 [2003]; People v Washington, 195 AD2d 1023, 1024 [1993], lv denied 82 NY2d 728 [1993]; see generally People v Bleakley, 69 NY2d 490, 495 [1987]), and the verdict is not against the weight of the evidence (see People v Thomas, 24 AD3d 1242, 1243 [2005], lv denied 6 NY3d 819 [2006]; People v Britt, 298 AD2d 984 [2002], lv denied 99 NY2d 556 [2002]). Defendant failed to preserve for our review his contention that Supreme Court “ ‘did not follow the requisite three-step procedure in evaluating his Batson challenge[ ]’ ” (People v Gales, 28 AD3d 1163, 1163 [2006], lv denied 7 NY3d 756 [2006]; see People v Robinson, 1 AD3d 985, 985-986 [2003], lv denied 1 NY3d 633 [2004], 2 NY3d 805 [2004]), and we decline to exercise our power to review defendant’s contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]; People v Strong, 17 AD3d 1121, 1122 [2005], lv denied 5 NY3d 795 [2005]). The sentence is not unduly harsh or severe. Present—Hurlbutt, J.P., Gorski, Centra and Green, JJ.