Opinion
2001-04376.
Decided April 19, 2004.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Flaherty, J.), rendered April 11, 2001, convicting him of attempted burglary in the second degree and attempted robbery in the third degree, upon a jury verdict, and imposing sentence.
Lynn W.L. Fahey, New York, N.Y. (Melissa S. Horlick and Winston McIntosh of counsel), for appellant, and appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, Scott W. Pearl, and Benjamin A. Darche of counsel), for respondent.
Before: NANCY E. SMITH, J.P., GLORIA GOLDSTEIN, THOMAS A. ADAMS, SANDRA L. TOWNES, JJ.
DECISION ORDER
ORDERED that the judgment is modified, on the facts, by vacating the conviction of attempted robbery in the third degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
The defendant's claim that the evidence adduced at the trial was legally insufficient to support his conviction is unpreserved for appellate review ( see CPL 470.05), and we decline to reach that issue in the exercise of our interest of justice jurisdiction. Upon the exercise of our factual review power, we are satisfied that the verdict of guilt with respect to the defendant's conviction of attempted burglary in the second degree was not against the weight of the evidence ( see CPL 470.15). The evidence established that the defendant intended to commit a crime in the complainant's dwelling ( see People v. Williams, 221 A.D.2d 673). The People were not required to establish the particular crime that the defendant intended to commit ( see People v. Gaines, 74 N.Y.2d 358, 362; People v. Mackey, 49 N.Y.2d 274, 279).
However, the verdict of guilt with respect to the crime of attempted robbery in the third degree was against the weight of the credible evidence ( see Penal Law §§ 110.00, 160.05; People v. Cooper, 88 N.Y.2d 1056; People v. Noble, 86 N.Y.2d 814, 815; People v. Parker, 96 A.D.2d 1063; see also People v. Gentile, 127 A.D.2d 686). The defendant was not observed rifling through any of the complainant's belongings. Nor was there any testimony that anything in the complainant's apartment had been disturbed. Further, there was no testimony that the defendant asked the complainant where she kept her purse, money, or valuables, or otherwise indicated in statements he made to law enforcement officials that he sought to take anything from the complainant's dwelling before he fled. Thus, the defendant's conviction of attempted robbery in the third degree must be vacated and that count of the indictment dismissed.
The defendant's remaining contentions raised in his supplemental pro se brief either are unpreserved for appellate review or without merit.
SMITH, J.P., GOLDSTEIN, ADAMS and TOWNES, JJ., concur.