         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1487
KA 09-01463
PRESENT: CENTRA, J.P., LINDLEY, SCONIERS, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MAJERE SMIKLE, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BORIS I. KARASCH,
TIMOTHY P. MURPHY, OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY M. MORGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered June 4, 2009. The judgment convicted
defendant, upon a jury verdict, of burglary in the first degree.

     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 burglary in the first degree (Penal Law §
140.30 [4]), for unlawfully entering an occupied apartment with a
handgun in an apparent attempt to steal money or drugs. Defendant
failed to preserve for our review his contention that Supreme Court
failed to comply with CPL 310.30 in connection with four jury notes
and an oral request from a juror (see People v Starling, 85 NY2d 509,
516; People v Peller, 8 AD3d 1123, lv denied 3 NY3d 679), and we
decline to exercise our power to review that contention as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]). We
reject the related contention of defendant that the court’s alleged
improper handling of the jury notes is a mode of proceedings error
that need not be preserved by a timely objection inasmuch as, here,
the court read the jury notes into the record before responding and
thus fulfilled its “core responsibility” under CPL 310.30 (People v
Kisoon, 8 NY3d 129, 134; see Starling, 85 NY2d at 516; People v
Vazquez, 28 AD3d 1100, 1101, lv denied 9 NY3d 965).

     We further conclude that the court’s Sandoval ruling did not
constitute a “ ‘clear abuse of discretion,’ ” warranting reversal
(People v Nichols, 302 AD2d 953, 953, lv denied 99 NY2d 657; see
People v Reid, 34 AD3d 1273, 1274, lv denied 8 NY3d 884). The prior
convictions in question bore directly on the credibility of defendant,
inasmuch as they involved acts of dishonesty by him (see People v
Robles, 38 AD3d 1294, 1295, lv denied 8 NY3d 990), and they reflected
                                 -2-                          1487
                                                         KA 09-01463

a willingness on his part to place his interests above those of
society (see People v Thomas, 8 AD3d 506, lv denied 3 NY3d 682; People
v Bell, 249 AD2d 777, 778, lv denied 92 NY2d 922). The court
similarly did not abuse its discretion in allowing the prosecutor to
question defendant concerning the underlying facts of a juvenile
delinquency adjudication in Family Court (see People v Gray, 84 NY2d
709, 712). We note that, although the record incorrectly refers to
that adjudication as a youthful offender adjudication, it is
permissible to question a defendant with respect to the underlying
acts of either type of adjudication (see id.).

     Defendant made only a general motion for a trial order of
dismissal and thus failed to preserve for our review his contention
that the conviction is not supported by legally sufficient evidence
(see People v Gray, 86 NY2d 10, 19). In any event, we reject that
contention inasmuch as defendant was identified by two eyewitnesses at
trial (see generally People v Bleakley, 69 NY2d 490, 495).
Furthermore, viewing the evidence in light of the elements of the
crime of burglary as charged to the jury (see People v Danielson, 9
NY3d 342, 349), we conclude that the verdict is not against the weight
of the evidence (see generally Bleakley, 69 NY2d at 495). We further
reject the contention of defendant that the 10-year term of
incarceration imposed is unduly harsh and severe, particularly in view
of the fact that defendant has a prior felony conviction and could
have been sentenced to as much as a 25-year term of incarceration.
Finally, we have reviewed defendant’s remaining contentions and
conclude that they are without merit.




Entered:   March 25, 2011                       Patricia L. Morgan
                                                Clerk of the Court
