| People v Torres |
| 2007 NY Slip Op 08792 [45 AD3d 1054] |
| November 15, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Roberto P.Torres, Appellant. |
—[*1] James E. Conboy, District Attorney, Fonda (Pamela A. Ladd of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Montgomery County (Catena, J.),rendered September 6, 2006, upon a verdict convicting defendant of the crime of burglary in thesecond degree.
At defendant's jury trial on a charge of burglary in the second degree, Marquis Laniertestified that although he was present when defendant and defendant's nephew broke into thevictims' residence to burglarize it, he had attempted to prevent them from doing so and did nothimself enter the residence. County Court instructed the jurors to determine whether Lanier wasan accomplice and, if he was, whether his testimony was corroborated. The jury found defendantguilty of burglary in the second degree, he was sentenced to a prison term of five years and henow appeals.
Although defendant contends that his conviction was not supported by legally sufficientevidence, his motion to dismiss made at the close of the People's case was limited to the allegedlack of evidence corroborating Lanier's testimony as an accomplice (see CPL 60.22 [1]).Accordingly, the broader contention that he now asserts is not preserved (see People vGray, 86 NY2d 10, 19 [1995]; cf. People v Finger, 95 NY2d 894, 895 [2000]). Asfor the limited assertion that there was insufficient corroborative evidence, we disagree. If thejury concluded [*2]that Lanier was an accomplice, the recordcontains sufficient independent corroborating evidence to permit consideration of his testimonyin support of defendant's conviction (see People v Hudson, 51 NY2d 233, 238-239[1980]; People v Thomas, 33 AD3d1056, 1057 [2006], lv denied 8 NY3d 850 [2007]). Were we to address defendant'sbroader contention, we would conclude that there is sufficient evidence to support every elementof the crime of burglary in the second degree. Upon viewing that evidence in a neutral light anddeferring to the jury's determination to credit Lanier's testimony, we conclude that the jury gavethe evidence the weight it should be accorded.
Defendant next contends that testimony of the loss of a lock of hair that had been kept by thevictims as a memento of a deceased child should have been excluded as unnecessary and undulyprejudicial. While determinations weighing the probative value against the prejudicial effect ofsuch evidence rest within the trial court's discretion and will be reviewed in light of the facts andcircumstances of each case (see People v Primo, 96 NY2d 351, 355 [2001]; see alsoPeople v Hayes, 97 NY2d 203, 207-208 [2002]), we agree that defendant preserved this issueand that the potential prejudice of this evidence clearly outweighed its probative value. We deemthe error to be harmless, however, because it was mentioned only once in testimony describingthe items that had been contained in a stolen fire-safe box, no attention was drawn to it and theother evidence of defendant's guilt was overwhelming (see People v Humphrey, 15 AD3d 683, 685 [2005], lvdenied 5 NY3d 763 [2005]; Peoplev Lee, 6 AD3d 751, 753 [2004]).
Finally, we find no abuse of discretion or extraordinary circumstances warranting a reductionin the sentence (see e.g. People vCarelli, 41 AD3d 1092, 1093 [2007]; People v Carter, 40 AD3d 1211, 1213 [2007], lv denied 9NY3d 864 [2007]).
Cardona, P.J., Carpinello, Mugglin and Lahtinen, JJ., concur. Ordered that the judgment isaffirmed.