Opinion
March 28, 2000.
Judgment, Supreme Court, New York County (Michael Corriero, J.), rendered January 14, 1998, convicting defendant, after a jury trial, of burglary in the second degree, and sentencing him, as a second violent felony offender, to a term of 7 years, unanimously affirmed.
Roger Smith, for respondent.
Amy K. Schiava, for defendant-appellant.
ROSENBERGER, J.P., WILLIAMS, TOM, ANDRIAS, JJ.
Defendant's contention that the prosecutor's summation mischaracterized the defense as having conceded the element of "physical injury", and tended to remove that element from the jury' s consideration, is unpreserved due to lack of specific objection, and we decline to review it in the interest of justice. Were we to review this argument, we would find that the prosecutor's comment was responsive to the defense summation and could not have caused any prejudice.
Defendant's claim that the court's instructions on the elements of burglary in the second degree improperly permitted the jury to conclude that there was no factual issue whether the complainant's truck constituted a "building" (see, Penal Law § 140.00[2]) is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the instruction could not have caused any prejudice because the truck's status as a "building" was never disputed by defendant (see, People v. Bettis, 249 A.D.2d 72, lv denied 92 N.Y.2d 847).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.