| People v Small |
| 2010 NY Slip Op 09808 [79 AD3d 1807] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v John P. Small,Jr., III, Appellant. |
—[*1] Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Stephen R. Sirkin, A.J.), renderedOctober 30, 2009. The judgment convicted defendant, after a nonjury trial, of burglary in the firstdegree (three counts), burglary in the second degree, and criminal possession of a weapon in thesecond degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a nonjury trialof, inter alia, three counts of burglary in the first degree (Penal Law § 140.30 [1], [3], [4]),and two counts of criminal possession of a weapon in the second degree (§ 265.03 [1] [b];[3]). Even assuming, arguendo, that defendant preserved for our review his contention thatCounty Court erred in failing to conduct a Sandoval hearing, we conclude that any errorin failing to do so in this nonjury trial is harmless. "Unlike a lay jury, a [justice] 'by reasons of. . . learning, experience and judicial discipline, is uniquely capable ofdistinguishing the issues and of making an objective determination' based upon appropriate legalcriteria, despite awareness of facts which cannot properly be relied upon in making the decision"(People v Moreno, 70 NY2d 403, 406 [1987]). "Although a jury may tend to conclude,despite limiting instructions, that a defendant who has committed previous crimes is more likelyto have committed the crime charged . . . , the [justice] in a nonjury trial will nothave that tendency . . . [Indeed, t]o require a trial court to conduct aSandoval hearing in every nonjury trial would be a wasteful expenditure of the court'stime and effort" (People v Stevenson, 163 AD2d 854, 854-855 [1990]). In any event, wenote that defendant testified herein and that the prosecutor did not cross-examine defendantconcerning his criminal history.
Defendant made only a general motion for a trial order of dismissal and thus failed topreserve for our review his contention concerning the alleged insufficiency of the evidence(see People v Gray, 86 NY2d 10, 19 [1995]). We conclude in any event that thetestimony of the victim and two other prosecution witnesses that defendant kicked down a door,"pistol-whipped" the victim, and placed the gun in the victim's mouth provided a " 'valid line ofreasoning and permissible inferences [that] could lead a rational person to the conclusion reachedby the [factfinder] on the basis of the evidence at trial' " (People v Johnston, 71 AD3d 1507, 1508 [2010], lv denied15 NY3d 752 [2010]). Viewing the evidence in light of the elements of the crimes in this nonjurytrial (see People v Danielson, 9NY3d 342, 349 [2007]), we further conclude that the verdict is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant failed to preserve for our review his contention that the court erred in ordering thata buccal swab be taken of defendant inasmuch as he raises new grounds in support of thatcontention for the first time on appeal (see CPL 470.05 [2]; People v Peele, 73 AD3d 1219,1221 [2010]). In any event, the indictment provided the court with the requisite " 'clearindication' " that probative evidence could be discovered from a buccal swab (see Matter ofAbe A., 56 NY2d 288, 297 [1982]; see also People v Pryor, 14 AD3d 723, 725 [2005], lvdenied 6 NY3d 779 [2006]), and defendant stipulated to the adequacy of the chain of custodyof the buccal swab as well as other swabs that were taken (see People v White, 211AD2d 982, 984 [1995], lv denied 85 NY2d 944 [1995]). Finally, the sentence is notunduly harsh or severe. Present—Centra, J.P., Peradotto, Carni and Sconiers, JJ.