Opinion
May 24, 1994
Appeal from the Supreme Court, New York County (Budd Goodman, J.).
Defendant's claim that the evidence was insufficient to prove burglary in the second degree since the premises he was accused of entering was a warehouse, not a dwelling, is without merit, there being overwhelming evidence that families use at least two floors of the building in which the warehouse is located as overnight lodgings, making the warehouse part of a "dwelling" within the meaning of Penal Law § 140.00 (3) (see, People v Dwight, 189 A.D.2d 566, lv denied 81 N.Y.2d 885; People v Rohena, 186 A.D.2d 509, lv denied 81 N.Y.2d 794; People v Johnson, 162 A.D.2d 267, 268, lv denied 76 N.Y.2d 894 ). Defendant's other claim that the court improperly accepted a verdict on one count of the indictment without first responding to a jury note requesting instruction on the legal definition of burglary in the second degree has not been preserved for review as a matter of law by timely objection (CPL 470.05; People v Conlan, 188 A.D.2d 429, 430, lv denied 81 N.Y.2d 969), and we decline to review it in the interest of justice. If we were to review it, we would find that defendant was not "`seriously prejudice[d]'" by the court's failure to respond to the note before accepting the verdict (People v. Agosto, 73 N.Y.2d 963, 966).
Concur — Murphy, P.J., Rosenberger, Kupferman, Ross and Tom, JJ.