| People v Craven |
| 2008 NY Slip Op 00917 [48 AD3d 1183] |
| February 1, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Ron D.Craven, Appellant. |
—[*1] Ron D. Craven, defendant-appellant pro se. James B. Vargason, District Attorney, Auburn (Christopher T. Valdina of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Peter E. Corning, J.), rendered July20, 2006. The judgment convicted defendant, upon a jury verdict, of criminal possession of aforged instrument in the first degree (three counts) and petit larceny (three counts).
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice by reducing the sentence imposed for each count of criminalpossession of a forged instrument in the first degree to an indeterminate term of incarceration oftwo to six years and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofthree counts each of criminal possession of a forged instrument in the first degree (Penal Law§ 170.30) and petit larceny (§ 155.25). We reject defendant's contention that theverdict is against the weight of the evidence (see generally People v Bleakley, 69 NY2d490, 495 [1987]). The People presented evidence that defendant passed counterfeit $20 bills attwo different retail stores in three separate transactions, and the jury was entitled to reject thetestimony of defendant that he was unaware that the bills were counterfeit (see People vCotton, 197 AD2d 897 [1993], lv denied 82 NY2d 893 [1993]). County Courtproperly admitted in evidence, over defendant's objection, those parts of the surveillancevideotapes from the first store. Although those parts of the videotapes showed defendantengaging in a fourth uncharged transaction, they nevertheless were admissible based upon theirrelevance to the issue of defendant's intent (see People v Brand, 135 AD2d 1125 [1987],lv denied 70 NY2d 1004 [1988]), as well as defendant's modus operandi (see Peoplev Nuness, 192 AD2d 960, 961-962 [1993], lv denied 82 NY2d 723 [1993]). Anyviolation of the best evidence rule that may have occurred as the result of the admission inevidence of the edited surveillance videotapes "was not at all prejudicial to the defendant and didnot affect the fairness of his trial" (People v Fondal, 154 AD2d 476, 477 [1989], lvdenied 75 NY2d 770 [1989]). Defendant failed to preserve for our review his contention thatthe People failed to establish an adequate foundation for the admission of the videotapes or thestill photographs derived therefrom (see People v Bunting, 134 AD2d 646, 648 [1987],lv denied 70 NY2d 1004 [1988]), and we decline to exercise our power to review thatcontention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).[*2]
Defendant further contends that the evidence with respectto the first transaction is legally insufficient to support his conviction of criminal possession of aforged instrument and petit larceny under counts one and two of the indictment because therewere breaks in the chain of custody of the counterfeit bill used in that transaction. We reject thatcontention (see generally Bleakley, 69 NY2d at 495). The People were not required toestablish an unbroken chain of custody for the counterfeit bill while it was in the possession ofstore personnel (see People v Taylor, 206 AD2d 904, 905 [1994], lv denied 84NY2d 940 [1994]) and, in any event, the breaks in the chain of custody affect only the weight tobe given to that evidence (see generally People v Nicholson, 231 AD2d 533 [1996],lv denied 89 NY2d 927 [1996]).
We reject the further contention of defendant, raised in the main brief and pro sesupplemental brief, that he was denied effective assistance of counsel (see generally People vBaldi, 54 NY2d 137, 147 [1981]). To the extent that his contention is based upon mattersoutside the record, it must be raised in a CPL article 440 proceeding (see People v Hoeft, 42 AD3d 968,969-970 [2007], lv denied 9 NY3d 962 [2007]). Defendant does not challenge the court'sdetermination that the photo array shown to the cashier at the second store in which defendantconducted a transaction with counterfeit bills was not unduly suggestive and, thus, there is noneed to consider his challenge to the court's alternative determination that the cashier had anindependent basis for his in-court identification (see People v Chipp, 75 NY2d 327, 335[1990], cert denied 498 US 833 [1990]; see also People v Jones, 215 AD2d 244[1995], lv denied 86 NY2d 796 [1995]).
In view of the circumstances of this case, however, we agree with defendant that the sentenceimposed for each count of criminal possession of a forged instrument in the first degree is undulyharsh and severe. Thus, as a matter of discretion in the interest of justice (see CPL 470.15[6] [b]), we modify the judgment by reducing those sentences to indeterminate terms ofincarceration of two to six years. We have examined defendant's remaining contentions,including those raised in the pro se supplemental brief, and conclude that none requires reversalor further modification of the judgment. Present—Gorski, J.P., Martoche, Smith, Centraand Green, JJ.