Opinion
KA 04-01027.
April 29, 2005.
Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.), rendered July 7, 2003. The judgment convicted defendant, upon a jury verdict, of burglary in the third degree and grand larceny in the fourth degree.
RAYMOND W. BULSON, PORTVILLE, FOR DEFENDANT-APPELLANT.
EDWARD M. SHARKEY, DISTRICT ATTORNEY, LITTLE VALLEY (LORI PETTIT RIEMAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Present: Green, J.P., Hurlbutt, Kehoe, Smith and Hayes, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him of burglary in the third degree (Penal Law § 140.20) and grand larceny in the fourth degree (§ 155.30 [1]), defendant has failed to preserve for our review his challenge to the legal sufficiency of the evidence ( see People v. Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678; People v. Finger, 95 NY2d 894, 895; People v. Gray, 86 NY2d 10, 19). Were we to reach the issue, we would conclude that the evidence is legally sufficient to establish that the premises unlawfully entered constituted a "building" (Penal Law § 140.00; § 140.20; see People v. Ruiz, 68 NY2d 855, affg for reasons stated at 120 AD2d 437; People v. Mincione, 66 NY2d 995, 996-997; see generally People v. Bleakley, 69 NY2d 490, 495). County Court did not err in imposing consecutive terms of incarceration upon defendant's conviction for burglary and grand larceny ( see Penal Law § 70.25; see also People v. Yong Yun Lee, 92 NY2d 987, 989; People v. Wright, 1 AD3d 707, 708-709, lv denied 1 NY3d 636; People v. Estep, 285 AD2d 726, 728, lv denied 97 NY2d 681; People v. Johnson, 280 AD2d 683, 684, lv denied 97 NY2d 683, 756).