PEOPLE v. GUTIERREZ

The verdict was based upon legally sufficient evidence and was not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490). There is no basis for disturbing the jury's determinations concerning identification. The victim was able to make a reliable identification because she saw defendant's face from very close range for a sufficient time and under adequate lighting conditions.

Defendant's argument that the trial court should have instructed the jury not to commingle the evidence of the two separate burglaries is unpreserved (see People v. Macon, 159 A.D.2d 390, lv denied 76 N.Y.2d 791), and we decline to review it in the interest of justice. Were we to review this claim, we would find that the summations and charge made it clear to the jury that the evidence as to each incident had to be considered separately (id.). We also note that the jury acquitted defendant of one of the burglaries.

We perceive no basis for reducing the sentence.

Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.