| People v Jackson |
| 2010 NY Slip Op 02259 [71 AD3d 1457] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v TommyJackson, Appellant. |
—[*1] Tommy Jackson, defendant-appellant pro se. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), renderedMarch 28, 2007. The judgment convicted defendant, upon a jury verdict, of burglary in the thirddegree, grand larceny in the fourth degree and criminal possession of stolen property in the fifthdegree.
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 of,inter alia, burglary in the third degree (Penal Law § 140.20) arising out of an incident inwhich he stole property owned by LeMoyne College (college). We reject defendant's contentionthat the conviction is not supported by legally sufficient evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]). The People presented video surveillance and stillphotographs obtained from that video that depicted a man who was identified as defendant bytwo security officers employed by the college. Those security officers had encountered defendanton prior occasions. Property that had been stolen from the college was recovered during a searchof the home of defendant's parents pursuant to a search warrant, and defendant's mother testifiedthat defendant sometimes stayed in the room where the property was located. Other propertystolen from the college was recovered from an individual who testified that he purchased it fromdefendant. Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we reject defendant's further contention that the verdict is against theweight of the evidence (see generally Bleakley, 69 NY2d at 495). The jury was entitledto discredit the testimony of defendant that he was not the individual who committed the crimes.The sentence is not unduly harsh and severe.
We reject the contention of defendant in his pro se supplemental brief that County Courterred in refusing to suppress the identification testimony of the two security officers based uponthe failure of the People to serve a CPL 710.30 notice with respect to that testimony. Althoughthe security officers viewed the video and photographs in question at a police station, the videoand photographs were provided to the police by the college. Thus, we conclude that theidentification of defendant by the security officers, both of whom had prior contact with him,"did not implicate [*2]the concern of undue suggestiveness at theheart of CPL 710.30 . . . [and was] not a police-arranged identification proceduresubject to CPL 710.30 notice" (People vJackson, 43 AD3d 488, 490 [2007], lv denied 9 NY3d 962 [2007]).
We reject the further contention of defendant in his pro se supplemental brief that the courterred in denying his motion to dismiss the indictment based on the People's failure to providehim with reasonable notice of the grand jury proceedings pursuant to CPL 190.50 (5) (a). "CPL190.50 (5) (a) does not mandate a specific time period for notice; rather, 'reasonable time' mustbe accorded to allow a defendant an opportunity to consult with [defense] counsel and decidewhether to testify before a [g]rand [j]ury" (People v Sawyer, 96 NY2d 815, 816 [2001]).Here, the record establishes that defendant advised the People of his intent to testify before thegrand jury three days before the matter was presented, and both defendant and defense counselwere present at the grand jury proceedings (cf. People v Degnan, 246 AD2d 819 [1998]).The contention of defendant that he lacked adequate time to consult with defense counsel priorto his grand jury testimony is without merit inasmuch as he was provided with reasonable noticethat the matter was to be presented to a grand jury (see People v Sawyer, 274 AD2d 603,605-606 [2000], affd 96 NY2d 815 [2001]).
Defendant failed to preserve for our review the contentions in his pro se supplemental briefthat he was denied a fair trial based on the court's alleged bias and that the persistent felonyoffender statute (CPL 400.20) violates the Equal Protection Clauses of the State and FederalConstitutions (see CPL 470.05 [2]), and we decline to exercise our power to reviewthose contentions as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]). We have reviewed the remaining contentions of defendant in his pro se supplemental briefand conclude that they are without merit. Present—Scudder, P.J., Peradotto, Lindley andGorski, JJ.