| People v Swackhammer |
| 2009 NY Slip Op 06084 [65 AD3d 713] |
| August 6, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Roy M.Swackhammer, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Thomas D. Jackson Jr. of counsel), forrespondent.
Kane, J. Appeal from a judgment of the County Court of Broome County (Mathews, J.),rendered June 12, 2007, upon a verdict convicting defendant of the crimes of criminal possessionof stolen property in the fourth degree and petit larceny.
Defendant was charged with criminal possession of stolen property in the fourth degree andpetit larceny in connection with the withdrawal of funds from his neighbor's savings andchecking accounts with a debit card. A jury found him guilty of both charges. On his appeal, weaffirm.
Defendant's convictions were supported by legally sufficient evidence. The victim and abank employee testified that the victim opened a savings account and a checking account. Thebank mailed a debit card and PIN number to her home. The victim and defendant lived inapartments in the same building, with their mailboxes close to each other. After not receiving herdebit card or PIN number, the victim contacted the bank and eventually learned that her accountshad negative balances. Security video shows a man, identified by the victim as defendant, usinga bank ATM machine at approximately the same time as withdrawals of $25 and $7.73 weremade from her accounts. The victim testified that she did not give defendant her debit card orpermission to withdraw money from her accounts. When police questioned defendant, he toldthem that the victim had not given him anything recently and had not allowed [*2]him to use her bank card. Viewing this evidence in a light mostfavorable to the People, it was sufficient to prove that defendant knowingly possessed stolenproperty, namely a debit card, with the intent to benefit himself, and that he stole money fromthe victim's accounts (see Penal Law §§ 155.25, 165.45 [2]; People v Hall, 57 AD3d 1222,1225 [2008], lv denied 12 NY3d 817 [2009]).
The convictions were not against the weight of the evidence. Defendant's girlfriend andanother neighbor testified that, on the day defendant withdrew money from the victim's accounts,she gave defendant her bank card and PIN number to buy her items at the store. The defense alsopointed out inconsistencies in the victim's testimony. If the defense version of events wasaccepted, defendant had permission to withdraw the money and possess the card; therefore, hedid not steal anything. But this version merely created a factual question for the jury to resolve.Giving deference to the jury's credibility determinations in favor of the People's version, theverdict was not against the weight of the evidence (see People v Romero, 7 NY3d 633, 644 [2006]; People v Smith, 41 AD3d 1093,1094 [2007], lv denied 9 NY3d 1039 [2008]).
Spain, J.P., Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.