| People v Clark |
| 2011 NY Slip Op 09476 [90 AD3d 1576] |
| December 23, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v AntonioClark, Appellant. |
—[*1] Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.), renderedOctober 24, 2008. The judgment convicted defendant, upon a jury verdict, of conspiracy in thefourth degree (two counts), burglary in the first degree (five counts), burglary in the seconddegree, robbery in the first degree (six counts), robbery in the second degree (two counts) andassault in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reversing that part convicting defendant of burglary in the second degree and dismissing counteight of the indictment and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial of, interalia, two counts of conspiracy in the fourth degree (Penal Law § 105.10 [1]) and fivecounts of burglary in the first degree (§ 140.30 [2]-[4]). Defendant contends that theconviction of the two counts of conspiracy in the fourth degree is not supported by legallysufficient evidence because the People failed to establish that he was present when the conspiracyoccurred. We reject that contention (see generally People v Bleakley, 69 NY2d 490, 495[1987]). Defendant's presence when the agreement was reached "could be readily inferred fromthe evidence" (People v Serra, 293 AD2d 338 [2002], lv denied 98 NY2d 681[2002]; see People v Smoke, 43AD3d 1332 [2007], lv denied 9 NY3d 1039 [2008]). Defendant further contendsthat, by giving a circumstantial evidence charge, County Court improperly permitted the jury toinfer that he participated in the conspiracy based merely on his alleged participation in theunderlying crimes. Defendant failed to preserve that contention for our review inasmuch as hedid not object to the circumstantial evidence charge on that specific ground (see People v Vassar, 30 AD3d1051 [2006], lv denied 7 NY3d 796 [2006]). In any event, given that there was nodirect proof of defendant's presence when the agreement was reached, we conclude that thecircumstantial evidence charge was proper (see generally People v Daddona, 81 NY2d990, 992 [1993]). Further, viewing the evidence in light of the elements of the crimes as chargedto the jury (see People v Danielson,9 NY3d 342, 349 [2007]), we reject defendant's further contention that the verdict is againstthe weight of the evidence (see generally Bleakley, 69 NY2d at 495).
Defendant further contends that the court committed reversible error by providing the jurorswith a written copy of the entire jury charge both while the court orally delivered the [*2]charge and during the jury's deliberations. Defendant failed topreserve that contention for our review (see People v Williams, 8 AD3d 963, 964 [2004], lv denied3 NY3d 683 [2004], cert denied 543 US 1070 [2005]), and we decline to exercise ourpower to review that contention as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]). Contrary to defendant's final contention, the sentence is not unduly harsh orsevere. Nevertheless, we note that count eight of the indictment, charging defendant withburglary in the second degree under Penal Law § 140.25 (2), must be dismissed as a lesserinclusory concurrent count of counts three through seven, charging defendant with burglary in thefirst degree (see People v Coleman,82 AD3d 1593, 1595 [2011], lv denied 17 NY3d 793 [2011]; People vSkinner, 211 AD2d 979, 980 [1995], lv denied 86 NY2d 741 [1995]). We thereforemodify the judgment accordingly. Present—Scudder, P.J., Centra, Green, Gorski andMartoche, JJ.