| People v Lostumbo |
| 2013 NY Slip Op 04137 [107 AD3d 1395] |
| June 7, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vStanley Lostumbo, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti,A.J.), rendered January 6, 2012. The judgment convicted defendant, upon a jury verdict,of criminal mischief in the third degree, criminal mischief in the fourth degree (twocounts), petit larceny (two counts), possession of burglar's tools (two counts) andreckless endangerment in the first degree (four counts).
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by reducing those parts convicting defendant of reckless endangerment in thefirst degree under counts 10, 11, 13 and 14 of the superceding indictment to recklessendangerment in the second degree (Penal Law § 120.20), and vacating thesentences imposed on those counts and as modified the judgment is affirmed and thematter is remitted to Supreme Court, Onondaga County, for sentencing on those counts.
Memorandum: Defendant appeals from a judgment convicting him following a jurytrial of, inter alia, one count of criminal mischief in the third degree (Penal Law §145.05 [2]) and four counts of reckless endangerment in the first degree (§ 120.25)arising out of two incidents in which he vandalized and stole money from vendingmachines. When the police approached defendant immediately after the second incident,he fled in a dump truck and led numerous law enforcement officers on a 40-minutechase. We agree with defendant that the evidence adduced at trial is legally insufficientto establish that he acted with depraved indifference to human life under Penal Law§ 120.25. Defendant's flight from law enforcement in a motor vehicle was notwantonly cruel or brutal behavior evincing " 'an utter disregard for the value of humanlife' " (People v Feingold, 7NY3d 288, 296 [2006]; seePeople v Lewie, 17 NY3d 348, 359 [2011]; see also People v Suarez, 6 NY3d 202, 213 [2005]). Evenif defendant had engaged in conduct that created a grave risk of death to identifiedmembers of the general public, the Court of Appeals and this Court have held in similarcases that such conduct does not constitute evidence of depraved indifference (see People v Prindle, 16 NY3d768, 771 [2011]; People vJean-Philippe, 101 AD3d 1582, 1583 [2012]). We therefore modify thejudgment by reducing the conviction of reckless endangerment in the first degree undercounts 10, 11, 13 and 14 of the superceding indictment to reckless endangerment in thesecond degree (§ 120.20), and we remit the matter to Supreme Court forsentencing on those counts.[*2]
We reject defendant's contention that theevidence is legally insufficient to support the conviction of criminal mischief in the thirddegree on the ground that the People failed to establish that he caused the damage to theproperty at issue (see Penal Law § 145.05 [2]). A witness testified at trialthat he observed a man repeatedly striking the vending machine with a crowbar forbetween three and five minutes. That witness also observed the same man shatter thewindow of a van and steal a GPS system therefrom, and defendant subsequentlyconfessed to stealing that GPS system. Defendant's girlfriend also testified that defendantrepeatedly struck the vending machine with a crowbar, causing the damage. Viewing theevidence in the light most favorable to the prosecution, as we must, we conclude that theevidence is legally sufficient to establish that defendant caused the damage to theproperty at issue (see People v Contes, 60 NY2d 620, 621 [1983]). Furthermore,viewing the evidence in light of the elements of criminal mischief in the third degree ascharged to the jury, we reject defendant's contention that the verdict is against the weightof the evidence (see generallyPeople v Danielson, 9 NY3d 342, 348-349 [2007]).
Defendant's posttrial motion was inadequate to preserve for our review his furthercontention that the testimony of an employee of the vending machine maintenancecompany was insufficient to establish the amount of damage to the vending machine (see People v Mills, 28 AD3d1156, 1157 [2006], lv denied 7 NY3d 903 [2006]; see generally People vGray, 86 NY2d 10, 19 [1995]). In any event, that contention is without merit (see People v Butler, 70 AD3d1509, 1509 [2010], lv denied 14 NY3d 886 [2010]).
We also reject defendant's contention that he was deprived of his right to a fair trialwhen the court admitted in evidence a letter that he had written to his girlfriend whileincarcerated, in which he requested that she not "hurt" him by testifying to what she hadwitnessed during both incidents. We conclude that the letter was properly admitted "as anadmission inconsistent with defendant's innocence" (People v McCray, 227AD2d 900, 900 [1996], lv denied 89 NY2d 866 [1996]).
Defendant failed to preserve for our review his further contention that duringdeliberations the jury was provided with exhibits that had not been admitted in evidence(see People v Kalb, 91AD3d 1359, 1360 [2012], lv denied 19 NY3d 963 [2012]), and we declineto exercise our power to review that contention as a matter of discretion in the interest ofjustice (see People vThompson, 34 AD3d 852, 854 [2006], lv denied 8 NY3d 885 [2007]).We note that, "to the extent that the record is not entirely clear on the point, defendanthas not met his burden of presenting a factual record sufficient to permit appellatereview" (People v Turaine, 227 AD2d 299, 300 [1996], lv denied 88NY2d 1025 [1996]).
Defendant failed to preserve for our review his contention that he was penalized forasserting his right to a trial (see People v Hurley, 75 NY2d 887, 888 [1990]),including his present objection to the court's comment at sentencing that it would impose"twice as much as what was offered pre-indictment" (see People v Jones, 2 AD3d 1397, 1399 [2003], lvdenied 2 NY3d 742 [2004]). We decline to exercise our power to review defendant'scontention as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]). Finally, we note that we are remitting the matter for sentencing on the four counts ofreckless endangerment in the second degree, and we conclude that the sentence is nototherwise unduly harsh or severe. Present—Smith, J.P., Peradotto, Lindley,Valentino and Whalen, JJ.