| People v Gibson |
| 2013 NY Slip Op 03341 [106 AD3d 834] |
| May 8, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Bennie Gibson, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Jeanette Lifschitz, and Tina Grillo of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Aloise, J.), rendered March 10, 2010, convicting him of criminal mischief in the thirddegree, petit larceny, and possession of burglar's tools, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant failed to preserve for appellate review (see CPL 470.05 [2];cf. People v Powell, 101AD3d 756, 757 [2012]) his contention that the People failed to present legallysufficient evidence establishing that the cost of replacing underwater copper cablebelonging to the Long Island Rail Road that he allegedly cut was in excess of $250(see Penal Law § 145.05 [2]). In any event, viewing the evidence in thelight most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621[1983]), we find that it was legally sufficient to support the defendant's conviction ofcriminal mischief in the third degree beyond a reasonable doubt (see People v Towsley, 85AD3d 1549, 1550 [2011]; People v Butler, 70 AD3d 1509, 1509 [2010]; People vDixon, 184 AD2d 725, 726 [1992]; People v Woodard, 148 AD2d 997,997-998 [1989]). Moreover, upon our independent review pursuant to CPL 470.15 (5),we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The defendant's contention that certain testimony presented at trial was inconsistentwith testimony presented to the grand jury and that, therefore, the People changed theirtheory of the case is unpreserved for appellate review (see CPL 470.05 [2]) and,in any event, is without merit.
The defendant's contention that the People failed to establish the chain of custody forcertain physical evidence recovered from the scene of the charged offenses isunpreserved for appellate review (see People v Mateo, 282 AD2d 398, 398[2001]; People v Moore, 248 AD2d 405, 405 [1998]). In any event, the Peopleestablished a sufficient chain of custody for the items offered into evidence (see People v Gibson, 28 AD3d576, 576 [2006]).
Contrary to the defendant's contention, the Supreme Court providently exercised itsdiscretion, and did not deprive him of the right to confront adverse witnesses againsthim, when it [*2]denied his request to recall aprosecution witness for further cross-examination (cf. People v Legere, 81 AD3d 746, 750 [2011]; People v Francisco, 44 AD3d870, 870 [2007]). Rivera, J.P., Dickerson, Leventhal and Hall, JJ., concur.