People v. Scott

• Decision Date: 12 July 1991
• Citation: 175 A.D.2d 625,572 N.Y.S.2d 562
• Parties: PEOPLE of the State of New York, Respondent, v. Alfred SCOTT, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 562

572 N.Y.S.2d 562

175 A.D.2d 625

PEOPLE of the State of New York, Respondent, v. Alfred SCOTT, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

July 12, 1991.

Edward J. Nowak by Kathleen McDonough, Rochester, for appellant.

Howard R. Relin by Elizabeth Clifford, Rochester, for respondent.

Before BOOMER, J.P., and PINE, BALIO, LAWTON and DAVIS, JJ.

MEMORANDUM:

Defendant, in his trial motion to dismiss, did not raise the issue whether the People presented legally sufficient evidence to prove that the fingerprint card he signed with a false name constituted a written instrument calculated to be filed in a public office (see, Penal Law § 170.00[1]; 170.10[2]. That issue, therefore, was not preserved for appellate review (see, People v. Logan, 74 N.Y.2d 859, 547 N.Y.S.2d 828, 547 N.E.2d 83; People v. Bynum, 70 N.Y.2d 858, 523 N.Y.S.2d 492, 518 N.E.2d 4; People v. Gallow, 171 A.D.2d 1061, 569 N.Y.S.2d 530), and in any event, was without merit. Defendant's contentions that the trial court erred in its instructions to the jury on the elements of forgery in the second degree and burglary in the third degree also were not preserved for review (see, CPL 470.05[2]; People v. Lipton, 54 N.Y.2d 340, 351, 445 N.Y.S.2d 430, 429 N.E.2d 1059), and we decline to exercise our discretionary review power in the interest of justice (see, CPL 470.15[6].

There is no merit to defendant's contention that the Assistant District Attorney's instruction to the Grand Jury on the crime of burglary in the third degree was so deficient as to impair the integrity of the Grand Jury's deliberations. The principal factual issue was whether defendant intended to commit a crime at the time he entered the premises. The verbatim reading of the relevant statutory provisions, though not as complete as it could have been, was sufficient to enable the Grand Jury to determine whether a crime was committed and whether legally sufficient evidence existed to establish the material elements of that crime (see, People v. Calbud, Inc., 49 N.Y.2d 389, 394-396, 426 N.Y.S.2d 238, 402 N.E.2d 1140; see also, People v. Goetz, 68 N.Y.2d 96, 115-116, 506 N.Y.S.2d 18, 497 N.E.2d 41).

Judgment unanimously affirmed.