Opinion
October 26, 1995
Appeal from the Supreme Court, New York County (Paul Bookson, J.).
Evidence at trial was that defendant and an unapprehended accomplice were hiding on a staircase in the complainant's building shortly after midnight, when the complainant and his companion returned from work. The complainant noticed that the usually locked outer door to the building had been left open and that the lock cylinder, which had recently been repaired, had been removed, prompting the complainant, who had recently been robbed in the building, to place his licensed handgun within reach. When the complainant reached the landing near his family residence, defendant rushed him, firing at him, and the complainant fired back. Viewed in a light most favorable to the People, such evidence was legally sufficient to prove defendant's unlawful entry into the building and his intent to commit a crime therein ( People v. Jenkins, 213 A.D.2d 279, lv denied 85 N.Y.2d 974), despite the absence of direct evidence of a forcible entry ( People v. Cozzetto, 142 A.D.2d 684), and regardless of whether the door had been closed but not locked ( People v. Agostinello, 191 A.D.2d 639, lv denied 81 N.Y.2d 1069) or whether an ordinarily locked door was left open inadvertently ( People v. Johnson, 162 A.D.2d 267, lv denied 76 N.Y.2d 894). We find no reason to disturb the jury's rejection of defendant's explanation for the presence in the building.
Defendant's claim that the People's evidence intruded a justification defense into the case that they failed to disprove beyond a reasonable doubt was not raised on his motion for a trial order of dismissal, and thus was not preserved for appellate review as a matter of law ( People v. Gray, 86 N.Y.2d 10). We decline to review in the interest of justice as the credible evidence does not support defendant's present claim that his presence in the building was innocent and that he fired at the complainant, whom he did not know, in self-defense. Also unpreserved, and in any event without merit, is defendant's challenge to the interested witness instruction ( People v Hickey, 162 A.D.2d 708, 709, lv denied 76 N.Y.2d 858). In the circumstances, we do not find the sentence to be excessive, as argued by defendant.
Concur — Sullivan, J.P., Rosenberger, Ross, Asch and Nardelli, JJ.