         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1133
KA 10-01468
PRESENT: FAHEY, J.P., CARNI, SCONIERS, GORSKI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DAMON SESSION, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered January 20, 2010. The judgment convicted
defendant, upon a nonjury verdict, of burglary in the second degree,
petit larceny and criminal mischief in the fourth degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a nonjury verdict of, inter alia, burglary in the second degree
(Penal Law § 140.25 [2]). Contrary to defendant’s contention, County
Court properly refused to suppress certain statements that defendant
made to the police after he was given Miranda warnings (see generally
People v Madison, 71 AD3d 1422, 1423, lv denied 15 NY3d 753; People v
Glover, 195 AD2d 999, lv denied 82 NY2d 849). Defendant failed to
preserve for our review his further contention that the conviction of
burglary in the second degree is not supported by legally sufficient
evidence inasmuch as he made only a general motion for a trial order
of dismissal (see People v Gray, 86 NY2d 10, 19). In any event, that
contention is without merit (see generally People v Bleakley, 69 NY2d
490, 495), and we therefore reject defendant’s further contention that
he was denied effective assistance of counsel based on defense
counsel’s failure to make a motion for a trial order of dismissal
specifically directed at the error raised on appeal (see People v
Caban, 5 NY3d 143, 152; People v Johnson, 81 AD3d 1428, lv denied 16
NY3d 896). Finally, viewing the evidence in light of the elements of
the crime of burglary in the second degree in this nonjury trial (see
People v Danielson, 9 NY3d 342, 348-349), we reject defendant’s
contention that the verdict with respect to that count is against the
weight of the
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                                                        KA 10-01468

evidence (see generally Bleakley, 69 NY2d at 495).




Entered: November 10, 2011                     Patricia L. Morgan
                                               Clerk of the Court
