| People v Hall |
| 2008 NY Slip Op 10069 [57 AD3d 1229] |
| December 24, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Lee Hall,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Brett M. Knowles of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the Supreme Court (Lamont, J.), rendered October 25,2007 in Albany County, upon a verdict convicting defendant of the crimes of burglary in the seconddegree and attempted burglary in the second degree.
The factual background is set forth in our earlier decision, where we reversed defendant'sconviction and remitted for a new trial (41 AD3d 880 [2007], lv denied 9 NY3d 876 [2007]).Briefly stated, defendant, on an evening in April 2005, allegedly attempted to burglarize a home onCohoes Road in the Town of Colonie, Albany County, and then successfully burglarized another homeon the same road. He was apprehended by police in the vicinity shortly after they received andresponded to reports of the criminal conduct. Following retrial, he was convicted of burglary in thesecond degree and attempted burglary in the second degree. Defendant appeals.
Defendant challenges both the legal sufficiency and the weight of the circumstantial evidence uponwhich the verdict rested. "The standard of appellate review in determining whether the evidence beforethe jury was legally sufficient to support a finding of guilt beyond a reasonable doubt is the same forcircumstantial and non-circumstantial cases—whether after viewing the evidence in the light mostfavorable to the prosecution, any rational trier of fact [*2]could havefound the essential elements of the crime beyond a reasonable doubt" (People v Grassi, 92NY2d 695, 697 [1999]; see People vRichardson, 28 AD3d 1002, 1003-1004 [2006], lv denied 7 NY3d 817 [2006]).When conducting weight of the evidence review on a case such as this one where a different verdictwould not have been unreasonable, we "must weigh conflicting testimony, review any rational inferencesthat may be drawn from the evidence and evaluate the strength of such conclusions" (People v Danielson, 9 NY3d 342, 348[2007]), while according deference "to the fact-finder's opportunity to view the witnesses, hear thetestimony and observe demeanor" (People vRomero, 7 NY3d 633, 644 [2006] [internal quotation marks and citation omitted]).
The crimes occurred late at night in a residential neighborhood with little pedestrian traffic. Theelderly resident of the home where defendant allegedly was attempting to enter a cellar windowreported to police that she heard scratching on the window (which she thought might be a stray dog),she tapped the window, and was startled to see a person wearing a light hooded sweatshirt and darkpants scurry away from the window. That window was discovered to have a piece of glass missingfrom it. Around the same time, a neighbor observed a person pushing a bicycle through the backyardarea. Shortly thereafter, the alarm was tripped at a nearby house, where the owner was away, anddamage later discovered at that house included, among other things, broken backdoor glass, the alarmsystem speaker torn off the wall, and a picture frame with broken glass. A tracking dog brought to thescene that evening followed a scent from the cellar window of the occupied home through the backyardand down the street toward the unoccupied home. The tracking was interrupted as police sawdefendant, wearing clothes matching the reported description of the perpetrator and moving quicklythrough a yard to the rear of a house, where police confronted defendant as he was about to get on abicycle. He became belligerent and aggressive. Police observed particles of glass on his face andclothing, and a broken piece of glass was found in defendant's pocket. Although the broken glass didnot match glass taken by police from the scene, the police explained that glass samples were not takenfor testing from all the items broken along the crime trail. Viewed most favorably to the People, theproof was legally sufficient (see People v Caslin, 249 AD2d 626, 627 [1998]). We have alsoindependently weighed and considered the evidence in a neutral light, and are unpersuaded that theverdict is against the weight of the evidence (see People v Hunter, 55 AD3d 1052, 1053 [2008]; People v Thornton, 4 AD3d 561, 563[2004], lv denied 2 NY3d 808 [2004]).
We find no reversible error in Supreme Court's denial of defendant's motion pursuant to CPL240.20 in which he sought to preclude from evidence a photograph police took of the picture framewith broken glass. The broken picture frame was apparently discarded by someone cleaning the housefor the owner. Prior to such time, the police did not remove the picture frame from the home orotherwise take control of it (see People v Hawes, 298 AD2d 706, 708 [2002], lvdenied 99 NY2d 582 [2003]; People v Darling, 276 AD2d 922, 923 [2000], lvdenied 96 NY2d 733 [2001]).
Defendant's contention that the prosecutor made improper comments during summation was notpreserved for review by an appropriate objection (see People v Jones, 8 AD3d 897, 898 [2004], lv denied 3NY3d 708 [2004]), and we decline to exercise our interest of justice jurisdiction with respect to thisissue. The remaining arguments have been considered and are unavailing.
Cardona, P.J., Carpinello, Kane and Malone Jr., JJ., concur. Ordered that the judgment isaffirmed.