| People v Nielsen |
| 2009 NY Slip Op 08402 [67 AD3d 1440] |
| November 13, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Tammy L.Nielsen, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Brenton P. Dadey of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.),rendered January 16, 2009. The judgment convicted defendant, upon a jury verdict, of grandlarceny in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed and thematter is remitted to Supreme Court, Onondaga County, for proceedings pursuant to CPL 460.50(5).
Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict ofgrand larceny in the third degree (Penal Law § 155.35). Defendant failed to preserve forour review her contention that the evidence is legally insufficient to support the convictioninasmuch as her motion for a trial order of dismissal was not" 'specifically directed' at the alleged error[s]" asserted on appeal (People v Gray, 86NY2d 10, 19 [1995]). Viewing the evidence in light of the elements of the crime as charged tothe jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). We reject thecontention of defendant that she was denied a fair trial based on the failure of the People todisclose prior to trial that they had made assurances to one of their witnesses that he would notbe prosecuted for tax evasion. Even assuming, arguendo, that those assurances constitutedBrady material, we agree with Supreme Court that defendant was "given a meaningfulopportunity to use the allegedly exculpatory material to cross-examine the People's witnesses oras evidence during [her] case," and thus reversal is not required (People v Cortijo, 70NY2d 868, 870 [1987]; see People v Tillman, 261 AD2d 854 [1999], lv denied93 NY2d 980 [1999]). The court properly denied defendant's motion to dismiss theindictment based upon the alleged insufficiency of the prosecutor's opening statement. "Theprosecutor stated the nature of the charge[ ] and the facts that he expected to prove in support ofthem[,] and thus his opening statement was adequate" (People v Dennee, 291 AD2d 888,888 [2002], lv denied 98 NY2d 650 [2002]; see generally People v Kurtz, 51NY2d 380, 384 [1980], cert denied 451 US 911 [1981]). The record does not supportdefendant's contention that the court improperly assumed the function or appearance of anadvocate during the trial (see People vWager, 19 AD3d 263 [2005], lv denied 5 NY3d 811 [2005]). Finally, theincarceration portion of the sentence is not unduly harsh or severe. Present—Scudder, P.J.,Centra, Fahey, Green and Gorski, JJ.