| People v Williams |
| 2008 NY Slip Op 00854 [48 AD3d 1108] |
| February 1, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v ClevelandWilliams, Appellant. |
—[*1] Thomas E. Moran, District Attorney, Geneseo (Eric R. Schiener of counsel), forrespondent.
Appeal from a judgment of the Livingston County Court (Joan S. Kohout, A.J.), renderedJanuary 31, 2006. The judgment convicted defendant, upon a jury verdict, of burglary in the thirddegree, criminal mischief in the fourth degree and attempted petit larceny.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of,inter alia, burglary in the third degree (Penal Law § 140.20). We reject the contention ofdefendant that he was denied effective assistance of counsel (see generally People vBaldi, 54 NY2d 137, 147 [1981]). To the extent that defendant's contention concerns mattersin the record before us, we conclude that defendant failed to meet his burden of "demonstrat[ing]the absence of strategic or other legitimate explanations" for defense counsel's allegedshortcomings (People v Garcia, 75 NY2d 973, 974 [1990]). To the extent that defendant'scontention concerns defense counsel's failure to offer in evidence 911 tapes, certain telephonerecords and testimony concerning the presence or absence of injury to defendant's legs afterdefendant's arrest are based on facts dehors the record, those failures must be raised by a motionpursuant to CPL article 440 (see Peoplev Jackson, 4 AD3d 773, 774 [2004], lv denied 2 NY3d 801 [2004]).
Defendant failed to preserve for our review his contention that the evidence with respect tothe burglary count is legally insufficient (see People v Gray, 86 NY2d 10, 19 [1995]) and,in any event, that contention is without merit (see generally People v Bleakley, 69 NY2d490, 495 [1987]). We further conclude that the verdict is not against the weight of the evidence(see generally id.). The jury was entitled to credit the testimony of the People's witnesses,and it cannot be said that the jury failed to give the evidence the weight it should be accorded (see People v Mead, 41 AD3d1306, 1307 [2007], lv denied 9 NY3d 963 [2007]).
We reject the further contention of defendant that County Court erred in refusing to admit inevidence a portion of his medical records. The People objected to the admission of that evidencepursuant to CPL 240.30 (1) (a), and we conclude that the court properly refused to admit thatportion of the medical records in evidence pursuant to CPL 240.70 (1), as a sanction fordefendant's failure to provide the People with reciprocal discovery (see People v Koziel, 31 AD3d1208, 1209 [2006], lv denied 7 NY3d 813 [2006]; see generally People vJenkins, 98 NY2d 280, 284 [2002]).[*2]
Although we agree with defendant that the court erred indenying his request for a circumstantial evidence charge, we conclude that the error is harmless."The evidence of defendant's guilt is overwhelming, and there is no significant probability thatthe jury would have acquitted defendant but for the court's failure to charge the jury with respectto circumstantial evidence" (People v Owens, 39 AD3d 1260, 1261-1262 [2007], lvdenied 9 NY3d 849 [2007]; see People v Crimmins, 36 NY2d 230, 241-242 [1975]).Present—Scudder, P.J., Hurlbutt, Lunn, Green and Gorski, JJ.