People v Houghtaling

2011 NY Slip Op 02486

Decided on March 31, 2011

Appellate Division, Third Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: March 31, 2011
101185



Calendar Date: February 7, 2011
Before: Spain, J.P., Lahtinen, Garry and Egan Jr., JJ.


George F. Mehm, Acting Public Defender, Albany
(Theresa M. Suozzi of counsel), for appellant.
P. David Soares, District Attorney, Albany
(Christopher D. Horn of counsel), for respondent.
Lahtinen, J.
Appeal from a judgment of the County Court of Albany
County (Herrick, J.), rendered July 9, 2007, upon a verdict convicting
defendant of the crime of falsifying business records in the first
degree.
The underlying facts are set forth more fully in our decision
addressing the appeal of defendant's former spouse (hereinafter
codefendant), who was tried with defendant and others for their
role in staging motor vehicle accidents in Albany County to
collect nonexistent or grossly exaggerated costs from insurance
companies (People v Houghtaling, 79 AD3d 1155 [2010]).
Following a lengthy jury trial on 72 counts, defendant and the
codefendant were each convicted of only count 12, which
charged falsifying business records in the first degree pertaining to an
accident on May 6, 2001. Defendant was sentenced as a second
felony offender to the maximum prison term of 2 to 4 years. He
now appeals.
We affirm. Defendant's arguments as to the factual
sufficiency of count 12 and the alleged prosecutorial misconduct were
addressed in the appeal of the codefendant (id. at 1156-1158).
After considering defendant's arguments on these issues, we are
unpersuaded that any reason has been set forth such that these
issues should be decided differently in his appeal than in [*2]the
codefendant's appeal.
Defendant contends that the verdict was against the weight of
the evidence. Where, as here, a different verdict would not have
been unreasonable, we view the evidence in a neutral light and
"weigh the relative probative force of conflicting testimony and
the relative strength of conflicting inferences that may be drawn
from the testimony" (People v Bleakley, 69 NY2d 490, 495
[1987] [internal quotation marks and citations omitted]; see
People v Danielson, 9 NY3d 342, 348 [2007]). There was ample
proof of each element of the crime (People v Houghtaling, 79
AD3d at 1157) and defendant's involvement was established by,
among other proof, testimony of the codefendant. The
contention that the acquittal of other counts fatally eroded the
conviction on count 12 was rejected under legal sufficiency analysis
(id. at 1157-1158) and, upon weighing the proof, we find it
unavailing when considered in weight of the evidence analysis.
Defendant challenges the credibility of some of the witnesses;
particularly the testimony of Willie Cook, another codefendant
who cooperated with the prosecution. However, we discern no
reason in this record not to accord deference to the jury's
credibility determinations (see People v Romero, 7 NY3d 633, 644
[2006]; People v Bleakley, 69 NY2d at 495; People v Butcher,
38 AD3d 942, 943 [2007], lv denied 9 NY3d 841 [2007]).
Having viewed the evidence in a neutral light and weighed the proof in
the record, we find that the verdict is not against the weight of
the evidence.
Defendant next asserts that his sentence was harsh and
excessive. "Absent a clear abuse of discretion or the existence of
extraordinary circumstances, a trial court's exercise of discretion in
imposing what it considers to be an appropriate sentence will
not be disturbed" (People v Elliot, 57 AD3d 1095, 1097 [2008],
lv denied 12 NY3d 783 [2009] [internal quotation marks and
citations omitted]; see People v Williamson, 77 AD3d 1183,
1185-1186 [2010]). Defendant has failed to show extraordinary
circumstances or that County Court abused its discretion. As
noted by the court, the minimum available sentence under the
circumstances was 1½ to 3 years, which was not considerably
less than the maximum of 2 to 4 years. Moreover, defendant's
prison term did not exceed the term offered in a pretrial plea
and, unlike the plea offer, defendant's sentence did not require
him to pay restitution. We are unpersuaded to disturb the
sentence.
We have considered defendant's remaining contentions and
find them to be without merit.
Spain, J.P., Garry and Egan Jr., JJ., concur.
ORDERED that the judgment is affirmed, and matter remitted
to the County Court of Albany County for further proceedings
pursuant to CPL 460.50 (5).

MEMORANDUM AND ORDER