People v. Salgado , 518 N.Y.S.2d 772 ( 1987 )

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Leahy, J.), rendered September 1, 1982, convicting him of attempted burglary in the third degree and criminal mischief in the fourth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Upon the exercise of our factual review power, we conclude that the People sustained their burden of proving beyond a reasonable doubt that the defendant intended to commit a crime in the premises which he had attempted to enter and that the verdict was not against the weight of the evidence (see, e.g., People v Gilligan, 42 NY2d 969).

In addition, the comments made by the prosecutor during his opening and closing arguments do not require reversal. The prosecutor’s opening statement was made in good faith and when the matter to which he had referred was stricken from the record, curative instructions were given to the jury. Moreover, the prosecutor’s closing statements were a fair response to the defense summation (see, e.g., People v Marks, 6 NY2d 67, cert denied 362 US 912; People v Blackman, 88 AD2d 620).

The defendant waived his right to challenge the constitutionality of a prior conviction which was the basis for his persistent felony offender adjudication since he failed to allege any constitutional irregularity concerning that specific conviction at the hearing or at sentencing (see, CPL 400.20 [6]). His sentence was neither harsh nor excessive.

Finally, we have examined the defendant’s remaining pro se contentions and find them to be without merit. Thompson, J. P., Lawrence, Weinstein and Harwood, JJ., concur.