| People v Zafuto |
| 2010 NY Slip Op 03682 [72 AD3d 1623] |
| April 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Brent Zafuto,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michelle L. Cianciosa of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), renderedJanuary 22, 2009. The judgment convicted defendant, upon a jury verdict, of burglary in thesecond degree, petit larceny and criminal possession of stolen property in the fifth 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 of,inter alia, burglary in the second degree (Penal Law § 140.25 [2]). Contrary to thecontention of defendant, County Court did not abuse its discretion in continuing the trial in hisabsence. The court had given defendant the requisite warnings pursuant to People vParker (57 NY2d 136, 141 [1982]), and he therefore waived his right to be present at trial(see People v Lewis, 57 AD3d1505 [2008], lv denied 12 NY3d 785 [2009]). Further, the court made a properinquiry and placed its reasoning on the record for determining that defendant's absence wasdeliberate (cf. People v Law, 198 AD2d 857, 858 [1993], lv denied 83 NY2d 807[1994]; see generally People v Brooks, 75 NY2d 898 [1990], mot to amend remittiturgranted 76 NY2d 746 [1990]).
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 People v Bleakley, 69 NY2d 490, 495 [1987])."Issues with respect to 'the credibility of prosecution witnesses concerning the voluntariness ofthe confession were for the jury to decide, and there is no basis in the record to disturb the jury'sresolution of those issues' " (People v Warney, 299 AD2d 956, 957 [2002], lvdenied 99 NY2d 633 [2003]). Finally, the sentence is not unduly harsh or severe.Present—Scudder, P.J., Centra, Carni, Sconiers and Pine, JJ.