| People v Daniels |
| 2010 NY Slip Op 06061 [75 AD3d 1169] |
| July 9, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Burnie E.Daniels, Appellant. |
—[*1]
Barry L. Porsch, District Attorney, Waterloo, for respondent.
Appeal from a judgment of the Seneca County Court (Dennis F. Bender, J.), rendered July13, 2009. The judgment convicted defendant, upon a nonjury verdict, of criminal mischief in thefourth degree, petit larceny and possession of burglar's tools.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reducing the amount of restitution ordered to $129.06 and as modified the judgment isaffirmed.
Memorandum: Defendant appeals from a judgment convicting him, following a nonjury trial,of criminal mischief in the fourth degree (Penal Law § 145.00 [1]), petit larceny (§155.25) and possession of burglar's tools (§ 140.35). We reject the contention of defendantthat County Court erred in refusing to suppress his statement to the police on the ground that hewas in custody when he made the statement and had not received Miranda warnings. "Asthe court properly determined, a reasonable person in defendant's position, innocent of anycrime, would not have believed that he or she was in custody, and thus Mirandawarnings were not required" (People v Lunderman, 19 AD3d 1067, 1068 [2005], lvdenied 5 NY3d 830 [2005]; see People v Yukl, 25 NY2d 585, 589 [1969], certdenied 400 US 851 [1970]). Based on the totality of the circumstances, we also reject thecontention of defendant that his consent to the search of his vehicle was involuntary (seePeople v Hyla, 291 AD2d 928 [2002], lv denied 98 NY2d 652 [2002]; People vCaldwell, 221 AD2d 972 [1995], lv denied 87 NY2d 920 [1996]; see generallyPeople v Gonzalez, 39 NY2d 122, 128 [1976]). In addition, even assuming, arguendo, thatthe People failed to comply with Penal Law § 450.10 by erroneously informing defendantthat the stolen coin boxes had been returned to their owner and thus were no longer in theirpossession to enable defendant to examine them, we cannot agree with defendant that the courtshould have refused to admit the coin boxes in evidence as a sanction based on that failure(see generally People v Johnson, 262 AD2d 1004, 1005 [1999], lv denied 93NY2d 1020 [1999]). There is no indication in the record that defendant actually sought to inspectthe coin boxes, despite the fact that the court provided defendant with an opportunity to do so.
Defendant waived his challenge to the legal sufficiency of the evidence supporting hisconviction of criminal mischief in the fourth degree inasmuch as he asked the court to chargethat crime as a lesser included offense of criminal mischief in the third degree (Penal Law§ 145.05[*2][2]), and he ultimately was convicted of thelesser included offense (see People vMcDuffie, 46 AD3d 1385, 1386 [2007], lv denied 10 NY3d 867 [2008])."Defendant ought not be allowed to take the benefit of the favorable charge and complain aboutit on appeal" (id. [internal quotation marks omitted]). Defendant failed to preserve forour review his contention that the evidence is legally insufficient to support the conviction ofpetit larceny (see People v Gray, 86 NY2d 10, 19 [1995]), and we reject the additionalcontention of defendant that the conviction of possession of burglar's tools is not supported bylegally sufficient evidence. "It is well settled that, even in circumstantial evidence cases, thestandard for appellate review of legal sufficiency issues is whether any valid line of reasoningand permissible inferences could lead a rational person to the conclusion reached by the[factfinder] on the basis of the evidence at trial, viewed in the light most favorable to the People"(People v Pichardo, 34 AD3d1223, 1224 [2006], quoting People v Hines, 97 NY2d 56, 62 [2001], reargdenied 97 NY2d 678 [2001] [internal quotation marks omitted]). Here, the evidencepresented at trial could lead a rational person to the conclusion reached by the court with respectto defendant's possession of burglar's tools, i.e., that defendant possessed the hammer andcrowbar seized from his van under circumstances evincing an intent to use them in thecommission of a forcible taking (see People v Borrero, 26 NY2d 430, 434 [1970];see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Also contrary to defendant'scontention, viewing the evidence in light of the elements of the crimes in this nonjury trial (see generally People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see generally Bleakley, 69 NY2d at 495).
We agree with defendant, however, that the court erred in ordering him to pay restitution inthe amount of $258.12. That award was based on evidence that two coin machines sustaineddamage that required an equal amount of repair at a collective cost of $258.12. The crimes ofwhich defendant was convicted involved damage to only one of those coin boxes, and we thusmodify the judgment by reducing the amount of restitution ordered accordingly. Defendant failedto preserve for our review his further contentions that the court erred in ordering him to payrestitution to a person who was not a victim of the crimes (see Penal Law § 60.27[4] [b]; People v Horne, 97 NY2d 404, 414 n 3 [2002]), and that the court erred inconsidering uncharged crimes in sentencing him (see CPL 470.05 [2]; People v Brown, 38 AD3d 676[2007], lv denied 9 NY3d 840 [2007]), 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]). Present—Smith, J.P., Fahey, Lindley, Sconiers and Green, JJ.