Opinion
No. KA 06-03642.
November 14, 2008.
Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.), rendered August 11, 2006. The judgment convicted defendant, upon a jury verdict, of attempted burglary in the second degree.
FRANK J. NEBUSH, JR., PUBLIC DEFENDER, UTICA (ESTHER COHEN LEE OF COUNSEL), FOR DEFENDANT-APPELLANT.
SCOTT D. McNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
Before: Scudder, P.J., Martoche, Centra, Lunn and Gorski, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25). We reject defendant's contention that the verdict is against the weight of the evidence ( see generally People v Bleakley, 69 NY2d 490, 495), and defendant made only a general motion for a trial order of dismissal and thus failed to preserve for our review his challenge to the legal sufficiency of the evidence ( see People v Gray, 86 NY2d 10, 19).
We further reject the contention of defendant that County Court improperly sentenced him as a second felony offender. When the court asked whether the allegations in the CPL 400.21 (2) statement filed by the prosecutor were true, defendant chose to exercise his Fifth Amendment rights and did not answer that question. The election by defendant to remain silent "does not negate the opportunity accorded him to controvert [the statement]" ( People v Tumminia, 101 AD2d 605, 606), and "[u]ncontroverted allegations in the statement shall be deemed to have been admitted by the defendant" (CPL 400.21). Finally, the sentence is not unduly harsh or severe.