Opinion
January 31, 1992
Appeal from the Monroe County Court, Connell, J.
Present — Callahan, J.P., Doerr, Green, Lawton and Davis, JJ.
Judgment unanimously affirmed. Memorandum: We reject defendant's contention that his retrial on the burglary count of the indictment is barred by principles of double jeopardy. Defendant argues that the evidence adduced at his first trial, which resulted in a mistrial when the jury was unable to agree upon a verdict, was legally insufficient to establish a burglary based upon the "remains unlawfully" component of the burglary statute (Penal Law § 140.25). We disagree. Viewing the evidence in the light most favorable to the People and indulging in all reasonable inferences in the People's favor (see, People v Malizia, 62 N.Y.2d 755, 757, cert denied 469 U.S. 932), we conclude that the evidence was sufficient to permit the jury to find that defendant intended to commit a crime in the victim's premises at the time that his unlawful remaining commenced (see, People v. Gaines, 74 N.Y.2d 358, 362-363; cf., People v. Konikov, 160 A.D.2d 146, lv denied 76 N.Y.2d 941). Moreover, we conclude that defendant's conviction of burglary in the second degree, upon his retrial, is supported by legally sufficient evidence (see, People v. Gaines, supra, at 363; People v. Bleakley, 69 N.Y.2d 490, 495).
Defendant failed to preserve for our review his contention that the trial court's charge on the burglary count was inadequate and thereby deprived him of a fair trial (see, CPL 470.05). In any event, that contention lacks merit.
Finally, the trial court properly rejected defendant's attempt to introduce into evidence his statement to police following his arrest (see, People v. Brown, 159 A.D.2d 956, lv denied 78 N.Y.2d 1009).