| People v Fomby |
| 2012 NY Slip Op 08823 [101 AD3d 1355] |
| December 20, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Christopher A.Fomby, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Damian M. Sonsire of counsel), forrespondent.
Mercure, J.P. Appeal from a judgment of the County Court of Chemung County (Buckley,J.), rendered October 4, 2010, upon a verdict convicting defendant of the crimes of burglary inthe second degree and grand larceny in the fourth degree.
In October 2009, defendant was charged in an indictment with one count of burglary in thesecond degree and one count of grand larceny in the fourth degree in connection with theburglary of a home in the Town of Southport, Chemung County. Following trial, defendant wasconvicted as charged and sentenced, as a persistent felony offender, to an aggregate term of 20years to life in prison, to run concurrently with the sentence imposed on a separate convictionthat is also on appeal (People v Fomby, 103 AD3d 28 [2012] [decided herewith]).
Initially, we reject defendant's argument that the verdict was not supported by legallysufficient evidence and was against the weight of the evidence. Defendant notes that the People'scase was based entirely on circumstantial evidence, and asserts that the proof linking him to theburglary was insufficient. "[E]ven in circumstantial evidence cases, the standard for appellatereview of legal sufficiency issues is 'whether any valid line of reasoning and permissibleinferences could lead a rational person to the conclusion reached by the fact finder on the basis ofthe evidence at trial, viewed in the light most favorable to the People' " (People v Hines,97 NY2d 56, 62 [2001], quoting People v Williams, 84 NY2d 925, 926 [1994]). In ourview, the evidence—although circumstantial—was compelling.[*2]
The People presented the testimony of the victims thatone of them had arrived home for lunch to find that ladders in their house's garage had beenknocked over, the garage door had been opened, and jewelry, cash and a large quantity of coinswere missing. The victims detailed the items taken and valued them at over $1,000. Although thevictims' house was set back 300 feet from the road, they found a McDonald's receipt on theground outside the house that showed a purchase made just after midnight on the morning of thebreak-in. After viewing a surveillance tape of the McDonald's drive-thru, police investigatorNicholas Demuth was able to link the purchase to the driver of a vehicle belonging to KarenPronti, defendant's former girlfriend. Pronti identified defendant as the driver of the truck shownon the surveillance video, and testified that he had access to the keys for the vehicle. She furtherindicated that she had driven defendant to the neighborhood where the burglary occurred on themorning of the incident, dropped him off near the entrance to the victims' driveway, and returnedto pick him up an hour or two later. Finally, the People presented evidence that defendant used aCoinStar machine shortly after the burglary to cash in $135.05 in coins.
This evidence was sufficient to establish, beyond a reasonable doubt, defendant's identity asthe perpetrator, unlawful entry into the victims' home and intent to commit a crime therein, aswell as the value of the items taken (see Penal Law §§ 140.25 [2]; 155.30[1]; People v Marmulstein, 6 AD3d879, 880-881 [2004], lv denied 3 NY3d 660 [2004]). Moreover, although a differentverdict would not have been unreasonable, after "weigh[ing] the relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may be drawn fromthe testimony," we conclude that the verdict was not against the weight of the evidence(People v Bleakley, 69 NY2d 490, 495 [1987] [internal quotation marks and citationomitted]; see People v Brisson, 68AD3d 1544, 1546-1547 [2009], lv denied 14 NY3d 798 [2010]; People v Hall, 57 AD3d 1229,1230-1231 [2008], lv denied 12 NY3d 784 [2009]). Defendant attacks Pronti's testimonyas incredible, contending that she had a motive to lie due to discord in their prior romanticrelationship. Appellate courts, however, must give "[g]reat deference" to the jury's assessment ofwitness credibility (People vRomero, 7 NY3d 633, 645 [2006] [internal quotation marks and citation omitted]), andwe find the jury's determination that Pronti's testimony was credible to be supported by therecord.
Turning to defendant's challenge to County Court's Sandoval ruling, we note that thecourt permitted the People to inquire regarding only the most recent of defendant's four priorattempted burglary or burglary convictions and did not permit impeachment of defendant basedupon his prior conviction of driving while intoxicated. The court further limited the scope ofinquiry by permitting the People to inquire into the details underlying the conviction only ifdefendant denied it. Inasmuch as a willingness to steal is recognized as particularly probative ofcredibility and the court properly weighed the probative value of the prior convictions against therisk of prejudice to defendant, we cannot say that the Sandoval compromise constitutedan abuse of discretion (see People vJones, 70 AD3d 1253, 1254-1255 [2010]; People v Caston, 60 AD3d 1147, 1148 [2009]). The similarity ofthe prior crime did not mandate its preclusion (see People v Vasquez, 71 AD3d 1179, 1180 [2010], lvdenied 14 NY3d 894 [2010]), and defendant's assertion that a limiting instruction wasrequired is unpreserved for our review (see People v Sturdevant, 74 AD3d 1491, 1494 [2010], lvdenied 15 NY3d 810 [2010]).
Similarly lacking in merit is defendant's argument that he was denied a fair trial due to theimproper admission of prior bad acts and prosecutorial misconduct during summation. TheMolineux rule provides that "evidence of uncharged crimes is inadmissible where its only[*3]relevance is to show defendant's bad character or criminalpropensity" (People v Agina, 18NY3d 600, 603 [2012]); here the testimony challenged by defendant did not encompassany prior bad acts. The People's elicitation of testimony that defendant was representedby a lawyer and that his picture was in a law enforcement database did not implicate him in anybad acts. Moreover, the prosecutor immediately stopped Pronti from testifying further whenPronti indicated that defendant had informed her that he had been in prison. Although thatimproper testimony was not stricken, defendant did not object and any error was harmlessinasmuch as defendant testified that he had been in prison (see People v Echavarria, 53 AD3d 859, 863 [2008], lvdenied 11 NY3d 832 [2008]). Finally, with respect to the prosecutor's comment insummation, defendant's objections are unpreserved and corrective action in the interest of justiceis unwarranted inasmuch as the challenged statements generally constituted fair comment on theevidence or were made in response to defense counsel's summation, "and the few impropercomments were not so pervasive or flagrant as to require reversal" (People v McCall, 75 AD3d 999,1002 [2010], lv denied 15 NY3d 894 [2010]; see People v Head, 90 AD3d 1157, 1158 [2011]; People v Barber, 13 AD3d 898,900-901 [2004], lv denied 4 NY3d 796 [2005]).
Defendant's remaining arguments have been considered and found to be lacking in merit.Nevertheless, inasmuch as we reverse the conviction upon which concurrent sentences wereimposed (People v Fomby, 103 AD3d 28 [2012]), we remitfor resentencing.
Rose, Kavanagh, Stein and Egan Jr., JJ., concur. Ordered that the judgment is modified, onthe law, by vacating the sentence imposed; matter remitted to the County Court of ChemungCounty for further proceedings not inconsistent with this Court's decision; and, as so modified,affirmed.