| People v White |
| 2010 NY Slip Op 01090 [70 AD3d 1316] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Benith White,Appellant. |
—[*1] Joseph V. Cardone, District Attorney, Albion (Susan M. Silleman of counsel), forrespondent.
Appeal from a judgment of the Orleans County Court (James P. Punch, J.), rendered October30, 2008. The judgment convicted defendant, upon a jury verdict, of grand larceny in the fourthdegree, petit larceny, and criminal possession of a weapon 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 ofgrand larceny in the fourth degree (Penal Law § 155.30 [7]), petit larceny (§155.25), and criminal possession of a weapon in the fourth degree (§ 265.01 [1]). Wereject the contention of defendant that County Court erred in refusing to suppress evidenceobtained as a result of the warrantless seizure of his vehicle. "If the police possess probablecause to believe the vehicle is the instrumentality of a crime and exigent circumstances exist,they may seize the automobile without a warrant," and both of those factors exist here(People v Buggenhagen, 57 AD2d 466, 468-469 [1977]; see People v Sweezey,215 AD2d 910, 914 [1995], lv denied 85 NY2d 980 [1995]). The further contention ofdefendant that he was denied a fair trial based on prosecutorial misconduct on summation ispreserved for our review only with respect to certain of the prosecutor's comments (seeCPL 470.05 [2]). In any event, that contention is without merit inasmuch as the prosecutor'scomments on summation were fair comment on defense counsel's summation (see People v Green, 60 AD3d1320, 1322 [2009], lv denied 12 NY3d 915 [2009]; People v Pepe, 259AD2d 949, 950 [1999], lv denied 93 NY2d 1024 [1999]).
Contrary to defendant's contention, the evidence is legally sufficient to support theconviction (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The testimonyof defendant's accomplice was corroborated by other evidence at trial, including the testimony ofa police officer, the victim, and a neighbor of the victim implicating defendant in the crimes (see People v Douglas, 23 AD3d1151 [2005], lv denied 6 NY3d 812 [2006]; see generally People v Johnson, 1 AD3d 891, 892 [2003]).Further, the evidence established that defendant possessed the handgun that was found in thebathroom of defendant's house, an area over which defendant exercised dominion and control(see Penal Law § 10.00 [8]; People v Carter, 60 AD3d 1103, 1106 [2009], lv denied12 NY3d 924 [2009]). Viewing the evidence in light of the elements of the crimes as charged tothe jury (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's further contention that the verdict is againstthe weight of the evidence (see generally Bleakley, 69 NY2d at 495). The jury wasentitled to credit the testimony of the People's witnesses over that of defendant's sole witness,who knew [*2]defendant personally and was in a romanticrelationship with one of defendant's accomplices (see generally id.).
Defendant contends that he was denied effective assistance of counsel based on thecumulative effect of several alleged errors at trial, including defense counsel's failure to object toportions of the prosecutor's summation and to the jury charge. We reject that contentioninasmuch as the record establishes that defendant received meaningful representation (see People v Smith, 32 AD3d1291, 1292 [2006], lv denied 8 NY3d 849 [2007]; see generally People vBenevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]).Defendant failed to preserve for our review his challenge to the amount of restitution imposed(see generally People v Golgoski,40 AD3d 1138 [2007]), and we decline to exercise our power to review that challenge as amatter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Finally, thesentence is not unduly harsh or severe. Present—Scudder, P.J., Centra, Fahey and Green,JJ.