| People v Young |
| 2008 NY Slip Op 07280 [55 AD3d 1234] |
| October 3, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Larry Young,Appellant. |
—[*1] Larry Young, defendant-appellant pro se. Frank J. Clark, District Attorney, Buffalo (Raymond C. Herman of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), renderedSeptember 13, 2006. The judgment convicted defendant, upon a jury verdict, of burglary in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofburglary in the second degree (Penal Law § 140.25 [2]). Defendant contends that he wasdenied fair notice of the charge against him based on the jury instruction on accessorial liability.According to defendant, he was not indicted under such a theory of liability, and the People didnot indicate that they would seek a jury instruction on accessorial liability until the last day oftrial testimony. We reject defendant's contention. "An indictment charging a defendant as aprincipal is not unlawfully amended by the admission of proof and instruction to the jury that adefendant is additionally charged with acting-in-concert to commit the same crime, nor does itimpermissibly broaden a defendant's basis of liability, as there is no legal distinction betweenliability as a principal or criminal culpability as an accomplice" (People v Rivera, 84NY2d 766, 769 [1995]; see People v Duncan, 46 NY2d 74, 79-80 [1978], reargdenied 46 NY2d 940 [1979], cert denied 442 US 910 [1979], rearg dismissed56 NY2d 646 [1982]; People vHarrison, 24 AD3d 1226 [2005], lv denied 7 NY3d 757 [2006]; People vSkinner, 251 AD2d 1013 [1998], lv denied 92 NY2d 930, 1038 [1998]). We thusconclude that "the jury was properly instructed concerning both theories based upon the evidenceadduced at trial" (People v Dixon, 261 AD2d 833 [1999], lv denied 93 NY2d1017 [1999]). Contrary to the contention of defendant, the accessorial liability instruction did notintroduce any new theory of culpability into the case that was inconsistent with that in theindictment, and thus his indictment as a principal provided him with fair notice of the chargeagainst him (see Rivera, 84 NY2d at 770-771).
Contrary to defendant's further contention, the conviction is supported by legally sufficientevidence. Viewing the evidence in the light most favorable to the People, as we must, weconclude that a[*2]" 'rational trier of fact could have found theessential elements of the crime beyond a reasonable doubt' " (People v Contes, 60 NY2d620, 621 [1983]). Nor is the verdict against the weight of the evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]). Although there were certain discrepancies between thetrial testimony of the victim, his prior sworn statement, and his grand jury testimony, his trialtestimony was not "incredible and unbelievable, that is, impossible of belief because it [was]manifestly untrue, physically impossible, contrary to experience, or self-contradictory"(People v Wallace, 306 AD2d 802, 802-803 [2003] [internal quotation marks omitted]),and the jury's resolution of credibility issues is entitled to great deference (see generallyBleakley, 69 NY2d at 495; People v Gritzke, 292 AD2d 805, 805-806 [2002], lvdenied 98 NY2d 697 [2002]). Thus, even assuming, arguendo, that a different verdict wouldnot have been unreasonable, we conclude that "the jury was justified in finding the defendantguilty beyond a reasonable doubt" (People v Danielson, 9 NY3d 342, 348 [2007]). Also contrary todefendant's contention, the sentence is not unduly harsh or severe.
Defendant contends in his pro se supplemental brief that County Court erred in denying hismotion for a mistrial because he was prejudiced by the reference of a prosecution witness to thefact that defendant was on probation at the time of the burglary at issue herein. We reject thatcontention. The witness made a single reference to that fact, and the court properly "instructedthe jury to disregard the reference" (People v Hawkes, 39 AD3d 1209, 1210 [2007], lv denied 9NY3d 845 [2007]; see People v Cruz, 272 AD2d 922, 923 [2000], affd 96 NY2d857 [2001]). The jury is presumed to have followed the court's curative instruction (seeHawkes, 39 AD3d at 1210), thereby alleviating any prejudice to defendant (see generallyPeople v Nusbaum, 222 AD2d 723, 726 [1995], lv denied 87 NY2d 1023 [1996]).We have examined the remaining contentions of defendant in his pro se supplemental brief andconclude that they are without merit. Present—Hurlbutt, J.P., Martoche, Peradotto, Pineand Gorski, JJ.