Opinion
October 30, 1989
Appeal from the Supreme Court, Westchester County (Ritter, J.).
Ordered that the judgment is affirmed.
The defendant contends that the discovery of his fingerprints on the inside lock cover of a safe and on a file drawer located in an office of the burglarized premises, immediately subsequent to the burglary, was legally insufficient evidence to support the conviction of burglary in the third degree. However, as the defendant failed to raise a specific objection on this ground in his motion for a trial order of dismissal, the issue is unpreserved for appellate review (see, People v Bynum, 70 N.Y.2d 858, affg 125 A.D.2d 207; People v Udzinski, 146 A.D.2d 245; People v Bailey, 146 A.D.2d 788; cf., People v Kilpatrick, 143 A.D.2d 1). In any event, the circumstantial evidence in this case was sufficient to "exclude to a moral certainty every reasonable hypothesis" but that of guilt (People v Way, 59 N.Y.2d 361, 363). Two executive employees of the business which occupied the burglarized premises testified that as of the late afternoon of Friday, December 16, 1983, the premises and the safe, which contained, inter alia, money, were secured; and that early the following Monday morning, after having been notified by the police that the alarm on the premises had gone off, they found the safe damaged and property, including money, missing. These witnesses further testified that the defendant had no authority to enter the premises or open the safe. That proof, coupled with the fingerprint evidence, established every element of the crime of burglary in the third degree beyond a reasonable doubt.
The defendant's contention that the conviction on the burglary charge is inconsistent with the acquittal on the charges of grand larceny and criminal mischief was not preserved for appellate review since the defendant failed to object on this ground prior to the discharge of the jury (see, People v Satloff, 56 N.Y.2d 745). Moreover, the acquittal on the grand larceny and criminal mischief charges did not negate any element of the crime of burglary in the third degree (see, People v Tucker, 55 N.Y.2d 1). Spatt, J.P., Sullivan, Harwood and Balletta, JJ., concur.