People v. Sexton (284 A.D.2d 940, 2001)

—Judgment unanimously modified as a matter of discretion in the interest of justice and as modified affirmed in accordance with the following Memorandum: Defendant failed to preserve for our review his contention, that the evidence of physical injury is legally insufficient to support his conviction of burglary in the first degree (Penal Law § 140.30 [2]; see, People v Gray, 86 NY2d 10, 19). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). Upon our review of the record, however, we conclude that the determinate term of imprisonment of 24 years imposed on the conviction of burglary in the first degree is unduly harsh. Therefore, as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [b]), we modify the judgment by reducing that sentence to a determinate term of imprisonment of 10 years (see, Penal Law § 70.02 [3] [a]). (Appeal from Judgment of Cattaraugus County Court, Himelein, J. — Burglary, 1st Degree.) Present — Green, J. P., Pine, Hurlbutt, Kehoe and Burns, JJ.