Opinion
2014-04-1
The PEOPLE of the State of New York, Respondent, v. George OLSON, Defendant–Appellant.
Richard M. Greenberg, Office of The Appellate Defender, New York (Samantha L. Stern of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sheryl Feldman of counsel), for respondent.
Richard M. Greenberg, Office of The Appellate Defender, New York (Samantha L. Stern of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sheryl Feldman of counsel), for respondent.
Judgments, Supreme Court, New York County (Carol Berkman, J.), rendered October 27, 2010, convicting defendant, upon his pleas of guilty, of two counts of burglary in the third degree, and sentencing him, as a second felony offender, to consecutive terms of 3 1/2 to 7 years, unanimously affirmed.
Defendant's contention that he was convicted of two burglary counts for the same unlawful entry, thereby violating the rule against multiplicitous counts and the corresponding double jeopardy principle, is unpreserved and waived ( see People v. Gonzalez, 99 N.Y.2d 76, 82, 751 N.Y.S.2d 830, 781 N.E.2d 894 [2002] ), and we decline to review it in the interest of justice. As an alternative holding, we reject defendant's claim on the merits. The record establishes that defendant made successive unlawful entries into two places, each constituting a separate and distinct “building” under the definition contained in Penal Law § 140.00(2), and thus committed two separate crimes ( see People v. Felder, 2 A.D.3d 365, 769 N.Y.S.2d 539 [1st Dept.2003], lv. denied 2 N.Y.3d 799, 781 N.Y.S.2d 298, 814 N.E.2d 470 [2004] ).see also People v. Frazier, 16 N.Y.3d 36, 41, 916 N.Y.S.2d 574, 941 N.E.2d 1151 [2010] ). For similar reasons, we reject defendant's challenges to his waiver of indictment, and to the imposition of consecutive terms. MAZZARELLI, J.P., SWEENY, ANDRIAS, MANZANET–DANIELS, KAPNICK, JJ., concur.