Opinion
KA 00-02382
February 1, 2002.
Appeal from a judgment of Supreme Court, Monroe County (Mark, J.), entered September 7, 2000, convicting defendant after a jury trial of, inter alia, criminal trespass in the third degree.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (KATHLEEN McDONOUGH OF COUNSEL), FOR DEFENDANT-APPELLANT.
HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (AMY I. MOLLOY OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., PINE, KEHOE, AND GORSKI, JJ.
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant contends that Supreme Court either failed to exercise its discretion or abused its discretion in adhering to its prior Sandoval ruling upon a retrial of the same charges following this Court's reversal of the prior judgment of conviction ( People v. Combo, 272 A.D.2d 992). By failing "to raise any objection to the court's ultimate ruling", defendant has failed to preserve that contention for our review ( People v. McAllister, 245 A.D.2d 184, lv denied 91 N.Y.2d 894; see, People v. Englert, 285 A.D.2d 987; People v. Johnson, 213 A.D.2d 791, 793, lv denied 85 N.Y.2d 975). In any event, the record does not contain defendant's prior criminal history, "and thus defendant has failed to meet his burden of presenting a sufficient factual record to enable us to review [his] contention" that the Sandoval determination was erroneous ( People v. Hickey, 284 A.D.2d 929, 930; see, People v. DeLong, 206 A.D.2d 914, 915; see generally, People v. Kinchen, 60 N.Y.2d 772, 773-774).