Majority
p. 1006The People of the State of New York, Respondent, v James P. Warney, Appellant. [646 NYS2d 467]
— Judgment
p. 1007
unanimously affirmed. Memorandum: The contention of defendant that he was deprived of a fair trial by prosecutorial misconduct is not preserved for our review (see, CPL 470.05 [2]). Were we to exercise our power to review the issue as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]), we would conclude that reversal is not required because the alleged improprieties were not so pervasive or egregious as to deprive defendant of a fair trial (cf., People v Mott, 94 AD2d 415 , 418-419).
We further conclude that the evidence is sufficient to sustain the conviction of burglary in the second degree, and the verdict is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490 , 495).
Finally, we decline to modify the sentence as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [b]). (Appeal from Judgment of Ontario County Court, Harvey, J.— Burglary, 2nd Degree.) Present—Denman, P. J., Pine, Fallon, Callahan and Balio, JJ.
Cases cited
- People v. Mott 94 AD2d 415 at 418-419 p. 1007
- People v. Bleakley 69 NY2d 490 at 495 p. 1007