People v. Lee

Appeal by the defendant from a judgment of the County Court, Nassau County (Kowtna, J.), rendered November 21, 1996, convicting him of attempted burglary in the second degree, possession of burglar’s tools, and criminal trespass in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress physical evidence.

Ordered that the judgment is modified, on the law, by vacating the sentence imposed on the conviction of attempted burglary in the second degree; as so modified, the judgment is affirmed and matter is remitted to the County Court, Nassau County, for resentencing on that conviction.

Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]).

The sentence imposed on the conviction of attempted burglary in the second degree was improper to the extent that it may have been based on the erroneous assumption that attempted burglary in the second degree was a class B felony (see, People v Ryans, 186 AD2d 233).

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Miller, J. P., Ritter, Krausman and Goldstein, JJ., concur.