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THE PEOPLE, res v. NORMAN FRANCIS, def-app

14-180. THE PEOPLE, res v. NORMAN FRANCIS, def-app — Judgment of conviction (James M. Burke, J.), rendered September 12, 2013, affirmed.

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14-180. THE PEOPLE, res v. NORMAN FRANCIS, def-app — Judgment of conviction (James M. Burke, J.), rendered September 12, 2013, affirmed.

Defendant’s claim that the evidence was legally insufficient to support the conviction for third-degree criminal trespass because his conduct was justified under the “choice of evil” theory of Penal Law §35.05(2) is unpreserved for appellate review (see People v. LaPetina, 9 NY3d 854, 855 [2007], rearg. denied 13 NY3d 855 [2009]), and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. Assuming, arguendo, that the scenario alleged by defendant constitutes a reasonable view of the evidence — that he entered the enclosed “no trespassing,” “ticketed passengers waiting area” because he experienced a “stomach cramp,” — “nowhere is there any indication in the record that defendant was confronted with imminent harm and faced with an emergency situation, such as to demonstrate that his criminal trespass was justifiable” (People v. Craggon, 171 AD2d 523 [1991], lv denied 78 NY2d 921 [1991]; People v. Craig, 78 NY2d 616, 623 [1991]; People v. Shine, 224 AD2d 306 [1996], lv denied 88 NY2d 853 [1996]).

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