Opinion
June 5, 2001.
Judgments, Supreme Court, New York County (Rena Uviller, J.), entered May 5, 1999, convicting defendant, after a jury trial, of attempted burglary in the second degree and tampering with a witness in the third degree, and sentencing him, as a persistent felony offender, to concurrent terms of 20 years to life, unanimously affirmed.
Ilisa T. Fleischer, for respondent.
Steven F. Pugliese, for defendant-appellant.
Before: Nardelli, J.P., Tom, Mazzarelli, Saxe, Friedman, JJ.
Defendant's claim that the evidence failed to establish a completed burglary was rendered moot by his acquittal of that charge. Defendant was properly charged with completed burglary, and he has not established that he was prejudiced in any manner by the submission of that charge to the jury (see, People v. Brown, 83 N.Y.2d 791; People v. Reynoso, 262 A.D.2d 102, lv denied 93 N.Y.2d 1025). The verdict convicting him of attempted burglary and witness tampering was based on legally sufficient evidence and was not against the weight of the evidence.
The court properly exercised its discretion in sentencing defendant as a persistent felony offender. The record does not establish that defendant's sentence was based on any improper criteria and we perceive no basis for reduction of sentence.