| People v Pepson |
| 2009 NY Slip Op 03292 [61 AD3d 1399] |
| April 24, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jason A.Pepson, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Frederick G. Reed, J.), rendered July6, 2007. The judgment convicted defendant, upon a jury verdict, of burglary in the third degreeand criminal possession of stolen property in the fourth 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 third degree (Penal Law § 140.20) and criminal possession of stolenproperty in the fourth degree (§ 165.45 [1]). We reject defendant's contention that CountyCourt erred in allowing the People to call a witness to testify on their behalf when they knew orshould have known that the witness would not provide testimony that was favorable to theprosecution. The record establishes that the prosecutor did not " 'call[ ] the witness solely orprimarily in order to impeach the witness and thereby place otherwise inadmissible evidencebefore the jury' " (People vMitchell, 57 AD3d 1308, 1310 [2008]).
Contrary to defendant's further contention, when the evidence is viewed in light of theelements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), the burglaryconviction is not against the weight of the evidence (see generally People v Bleakley, 69NY2d 490, 495 [1987]). The testimony of the People's witnesses that was favorable to theprosecution was not incredible as a matter of law (see People v Jackson, 57 AD3d 1463 [2008]). Also contrary todefendant's contention, the evidence is legally sufficient to establish that the value of the stolenproperty exceeds the statutory minimum of $1,000 (see generally Bleakley, 69 NY2d at495). The testimony of the victim properly included his "basis for knowledge of value. . . and . . . the condition of the stolen property . . . [so]that the jury ha[d] a reasonable basis for inferring, rather than speculating, that the value of theproperty exceeded the statutory threshold" (People v Sheehy, 274 AD2d 844, 845[2000], lv denied 95 NY2d 938 [2000]; see People v Alexander, 41 AD3d 1200, 1201 [2007], lvdenied 9 NY3d 920 [2007]). Defendant's remaining contentions are not preserved for ourreview (see CPL 470.05 [2]), and we decline to exercise our power to review them as amatter of discretion in the interest of justice (see CPL 470.15 [6] [a]).Present—Hurlbutt, J.P., Peradotto, Carni, Green and Pine, JJ.