Opinion
KA 02-01956.
December 31, 2003.
Appeal from a judgment of Steuben County Court (Bradstreet, J.), entered April 29, 2002, convicting defendant after a nonjury trial of, inter alia, burglary in the first degree.
DAVID M. PARKS, ITHACA, FOR DEFENDANT-APPELLANT.
JOHN C. TUNNEY, DISTRICT ATTORNEY, BATH (JASON L. COOK OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: PINE, J.P., WISNER, HURLBUTT, KEHOE, AND HAYES, JJ.
MEMORANDUM AND ORDER
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 following a bench trial of, inter alia, burglary in the first degree (Penal Law § 140.30) and menacing in the second degree (§ 120.14 [1]). The conviction arose out of an incident in which defendant broke down the door of the apartment of his ex-girlfriend and assaulted her, threatening to kill her with a knife. Defendant has failed to preserve for our review his contention that the evidence is legally insufficient to support the burglary conviction because it fails to establish that he entered or remained unlawfully in the dwelling. Defendant's motion to dismiss was not "specifically directed" at that asserted deficiency in the proof ( People v. Gray, 86 N.Y.2d 10, 19; see People v. Hines, 97 N.Y.2d 56, 62, rearg denied 97 N.Y.2d 678) . Further, defendant moved to dismiss only at the close of the People's case, failing to renew his motion at the close of all the proof. "[A] defendant who presents evidence after a court has declined to grant a trial motion to dismiss made at the close of the People's case waives subsequent review of that determination" ( Hines, 97 N.Y.2d at 61; see People v. Welch, 307 A.D.2d 776, 778, lv denied 100 N.Y.2d 625; People v. Tutt, 305 A.D.2d 987, 988, lv denied 100 N.Y.2d 588). In any event, we conclude that the evidence is legally sufficient to establish that defendant entered the apartment unlawfully ( see People v. Plume, 306 A.D.2d 916, 917; People v. Horn, 302 A.D.2d 975, lv denied 100 N.Y.2d 539; People v. Prober, 298 A.D.2d 966, 967, lv denied 99 N.Y.2d 538). The verdict is not against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495), and the sentence is not unduly harsh or severe.