| People v Green |
| 2008 NY Slip Op 02512 [49 AD3d 1029] |
| March 20, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Richard J.Green Jr., Appellant. |
—[*1] Louise K. Sira, District Attorney, Johnstown (Matthew E. Trainor of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Fulton County (Hoye, J.), renderedDecember 1, 2006, upon a verdict convicting defendant of the crimes of burglary in the thirddegree (seven counts), petit larceny (seven counts) and criminal contempt in the second degree(five counts).
Following a jury trial, defendant was convicted, as charged in two consolidated indictments,of seven counts of burglary in the third degree and seven counts of petit larceny as a result of hisbreaking into and stealing property from six local businesses within a three-week period. He wasalso convicted of five counts of criminal contempt in the second degree. County Court sentenceddefendant, as a second felony offender, to an aggregate prison term of 15 to 30 years. Defendantappeals, and we affirm.
Defendant argues that his conviction of five of the burglaries is not supported by legallysufficient evidence. This challenge, however, is unpreserved as to all but one of the burglariesbecause no grounds were specified in the defense's motion for dismissal at the close of the proof(see People v Gray, 86 NY2d 10, 19 [1995]; People v Torres, 45 AD3d 1054, 1054 [2007]). In any event, as toall of the burglaries, we find the People presented legally sufficient evidence that defendant wasthe perpetrator.
As to five of the burglaries, the testimony of defendant's girlfriend, who was his [*2]accomplice, placed him at the times and places of the crimes. As tofour of these burglaries, she also described how defendant had either physically broken into thebusiness premises or returned to her car with a cash register in his possession. This testimonywas adequately corroborated by proof that police officers were able to recover the items of stolenproperty from the places where the girlfriend said they would be located, the presence ofmatching DNA at one of the crime scenes and the similarity of the modus operandi of theburglaries (see People v Faulkner,36 AD3d 951, 952 [2007], lv denied 8 NY3d 922 [2007]; People v Mensche,276 AD2d 834, 834-835 [2000], lv denied 95 NY2d 966 [2000]). As to the remainingtwo burglaries at Kenney's Marine, the evidence showed that they both matched defendant'smodus operandi, defendant had money during the relevant time period despite beingunemployed, and his DNA was also found at this scene after the second, similar break-in 12 dayslater. Viewing the evidence in a neutral light and according deference to the jury's firsthandassessment of witness credibility and the inferences that could be drawn from the physicalevidence, we further find that the jury gave the evidence the weight it should be accorded (see People v Albanese, 38 AD3d1015, 1017 [2007], lv denied 8 NY3d 981 [2007]; People v Hutcherson, 25 AD3d912, 914 [2006], lv denied 6 NY3d 849 [2006]).
Defendant also contends that County Court erred in failing to give the jury a charge regardingcircumstantial evidence as to the two burglaries at Kenney's Marine. This challenge, however,was not preserved for our review because defendant failed to request an additional charge orobject to the jury charge as given (seee.g. People v Edwards, 39 AD3d 1078, 1081 [2007]), and we decline to exercise ourinterest of justice jurisdiction with respect to this issue (see CPL 470.05 [2]; People v Zakrzewski, 7 AD3d823, 824 [2004]).
Lastly, we find neither an abuse of discretion nor extraordinary circumstances meriting areduction in defendant's sentence (see People v Gilliam, 300 AD2d 701, 703 [2002],lv denied 99 NY2d 628 [2003]). The term of imprisonment imposed on each of theburglary convictions is less than the maximum permitted by statute, and they were properly madeconsecutive (see Penal Law § 70.06 [3] [d]; [4] [b]; People v Mason, 2 AD3d 1207,1207-1208 [2003]). Also, to the extent that defendant cites his cocaine addiction as the reason forhis impulsive criminal conduct, we note that he repeatedly failed to take advantage of theopportunities for drug counseling and treatment that previously had been offered to him.
Mercure, J.P., Spain, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed.