| People v Jackson |
| 2009 NY Slip Op 06979 [66 AD3d 1415] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v KennethJackson, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.),rendered June 10, 2008. The judgment convicted defendant, upon a nonjury verdict, of criminalpossession of stolen property in the fifth degree and criminal possession of a controlledsubstance in the seventh degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a bench trial ofcriminal possession of stolen property in the fifth degree (Penal Law § 165.40) andcriminal possession of a controlled substance in the seventh degree (§ 220.03). Defendantwas acquitted of burglary in the third degree (§ 140.20). Viewing the evidence in light ofthe elements of criminal possession of stolen property in the fifth degree (see People v Danielson, 9 NY3d342, 349 [2007]), we reject defendant's contention that the verdict with respect to that countis against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490,495 [1987]). "[D]efendant's knowledge that property is stolen may be proven circumstantially,and the unexplained or falsely explained recent exclusive possession of the fruits of a crimeallows a [trier of fact] to draw a permissible inference that defendant knew the property wasstolen" (People v Landfair, 191 AD2d 825, 826 [1993], lv denied 81 NY2d 1015[1993]; see People v Jackson, 282 AD2d 830, 832-833 [2001], lv denied 96NY2d 902 [2001]). We thus conclude that Supreme Court was entitled to infer from thecircumstantial evidence presented by the People that defendant knowingly possessed stolenproperty for his own benefit (see Penal Law § 165.40; see generally People vZorcik, 67 NY2d 670, 671 [1986]), and it cannot be said that the court failed to give theevidence the weight it should be accorded (see generally Bleakley, 69 NY2d at 495).
Defendant failed to preserve for our review his further contention that the verdict isinconsistent insofar as the court found him guilty of criminal possession of stolen property basedon his possession of a bicycle but acquitted him of the burglary during which that bicycle wasstolen (see generally People v Alfaro, 66 NY2d 985, 987 [1985]; People v Putt,303 AD2d 992 [2003]). We decline to exercise our power to review that contention as a matterof discretion in the interest of justice (see CPL 470.15 [6] [a]). Present—Scudder,P.J., Hurlbutt, Martoche, Smith and Centra, JJ.