| People v Howell |
| 2007 NY Slip Op 10364 [46 AD3d 1464] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v William H.Howell, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), renderedNovember 18, 2005. The judgment convicted defendant, upon a jury verdict, of burglary in thethird degree and grand larceny in the fourth degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofburglary in the third degree (Penal Law § 140.20) and grand larceny in the fourth degree(§ 155.30 [1]). Contrary to defendant's contention, the evidence is legally sufficient tosupport the conviction (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).Fingerprint evidence alone is legally sufficient evidence to support a conviction underappropriate circumstances (see People v Rusho, 291 AD2d 855 [2002], lv denied98 NY2d 680 [2002]). Viewed in the light most favorable to the People (see People vContes, 60 NY2d 620, 621 [1983]), the evidence established that defendant's fingerprint wasfound on a beer bottle that was left near the burglarized vehicle on the night that the crimes werecommitted. The vehicle was parked in a gravel pit located in the Town of Phelps, and theevidence established that it did not appear that members of the public had previously entered thegravel pit. Defendant, a resident of Rochester, told the police that he had not been in the Phelpsarea for approximately five years. Under these circumstances, the fingerprint evidence "may notbe accounted for by any hypothesis of defendant's innocence, and thus the conviction issupported by legally sufficient evidence" (Rusho, 291 AD2d at 856).
We reject defendant's further contention that the People failed to meet their burden ofproving the amount of restitution owed by a preponderance of the evidence (see PenalLaw § 60.27 [2]; CPL 400.30 [4]; People v Tzitzikalakis, 8 NY3d 217, 221 [2007]). The People mettheir burden by presenting the testimony of the victim at the restitution hearing establishing hisout-of-pocket expenses (see People vSenecal, 31 AD3d 980 [2006]; People v Shortell, 30 AD3d 837 [2006]; People v Morales,256 AD2d 729 [1998], lv denied 95 NY2d 868 [2000]). Defendant offered no evidence tothe contrary, despite the fact that County Court granted his request for an adjournment for thatpurpose, as well as the fact that the court previously granted defendant's motion for funds toemploy a private investigator in preparation for the restitution hearing. Present—Gorski,J.P., Martoche, Smith, Centra and Green, JJ.