People v. Salgado

Judgment unanimously affirmed. Memorandum: Defendant contends that the conviction of burglary in the first degree (Penal Law § 140.30 [2]) is against the weight of the evidence because the People failed to establish that he knowingly remained unlawfully in the complainant’s apartment with the contemporaneous intent to commit a crime therein (see, People v Gaines, 74 NY2d 358, 362) . Upon weighing the probative force of the conflicting testimony, we conclude that the verdict is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495; People v Long, 224 AD2d 949, lv denied 88 NY2d 967).

We reject defendant’s contention that County Court erred in its charge to the jury with respect to the burglary count. Defendant’s contention that the court erred in using the language “unlawfully enters” when it was undisputed that defendant lawfully entered the premises (see, People v Gaines, supra, at 363) is unpreserved for our review because defendant failed to object to the charge on that ground (see, People v Ray, 254 AD2d 189, 190, lv denied 92 NY2d 985; People v Murphy, 188 AD2d 1061). In any event, the court used that language only in reading the indictment to the jury, and not when instructing the jury on the elements of burglary in the first degree or the lesser included offenses, thereby obviating any prejudice to defendant (see, People v Agrelo-Travieso, 257 AD2d 514, 515, lv denied 93 NY2d 870). Defendant also contends that the court failed to instruct the jury that the intent to commit a crime must be formed contemporaneously with remaining unlawfully in the building (see, People v Gaines, supra, at 363) . We disagree. The court’s charge adequately conveyed the elements of burglary in the first degree, including the requirement of contemporaneous intent (see, Penal Law § 140.30 [2]; 1 CJI[NY] PL 140.30 [2], at 140-1103 — 140-1108 [2d ed]). (Appeal from Judgment of Monroe County Court, Smith, J. — Burglary, 1st Degree.) Present — Green, J. P., Hayes, Hurlbutt and Kehoe, JJ.