| People v Wilson |
| 2013 NY Slip Op 05100 [108 AD3d 1011] |
| July 5, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vReginald Wilson, Also Known as Reginald M. Wilson, Appellant. (Appeal No.1.) |
—[*1] Reginald Wilson, defendant-appellant pro se. Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.),rendered May 12, 2010. The judgment convicted defendant, upon a jury verdict, ofburglary in the second degree and criminal possession of stolen property in the thirddegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himupon a jury verdict of burglary in the second degree (Penal Law § 140.25 [2]) andcriminal possession of stolen property in the third degree (§ 165.50). In appeal No.2, defendant appeals from an amended sentence directing him to pay restitution,including a 5% designated surcharge, in the amount of $1,491.78.
Defendant's contention in appeal No. 1 that the accomplice testimony adduced at trialwas not sufficiently corroborated by independent evidence is unpreserved for our review(see People v Demolaire, 55AD3d 621, 622 [2008], lv denied 11 NY3d 897 [2008]; cf. People vMcGrath, 262 AD2d 1043, 1043 [1999]). In any event, defendant's contention iswithout merit. "New York's accomplice corroboration protection . . .requires only enough nonaccomplice evidence to assure that the accomplices haveoffered credible probative evidence that connects the accomplice evidence to thedefendant" (People vCaban, 5 NY3d 143, 155 [2005] [internal quotation marks omitted]). Even themost "[s]eemingly insignificant matters may harmonize with the accomplice's narrativeso as to provide the necessary corroboration" (id. [internal quotation marksomitted]). Here, defendant's accomplice testified that he assisted defendant inburglarizing the victim's home and stealing the victim's car, and that testimony wascorroborated by the testimony of other witnesses that defendant was seen driving thevictim's stolen car the day after the burglary. Contrary to defendant's further contentionsin appeal No. 1, the evidence is legally sufficient to support the conviction and, viewingthe evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d [*2]490, 495 [1987]). In addition, we reject defendant'scontention in appeal No. 1 that the sentence of concurrent terms of incarceration isunduly harsh and severe, and we decline to exercise our power to reduce the sentence asa matter of discretion in the interest of justice (see CPL 470.15 [6] [b]).
In his main and pro se supplemental briefs, defendant contends with respect to appealNo. 1 that he was denied a fair trial by prosecutorial misconduct on summation. Heconcedes that he did not object to the alleged misconduct, however, and thus hiscontention has not been preserved for our review (see People v Roman, 85 AD3d 1630, 1631-1632 [2011],lv denied 17 NY3d 821 [2011]). We conclude in any event that his contention iswithout merit (see People vHassem, 100 AD3d 1460, 1461 [2012], lv denied 20 NY3d 1099[2013]). Also with respect to appeal No. 1, defendant failed to preserve for our reviewhis contention in his pro se supplemental brief concerning the court's alibi charge (see People v Melendez, 16NY3d 869, 870 [2011]). In any event, that contention is without merit. Contrary tothe further contention of defendant in appeal No. 1, raised in his pro se supplementalbrief, defense counsel's failure to object to the prosecutor's allegedly improper remarkduring summation and to the alibi charge did not amount to ineffective assistance ofcounsel (see generally People v Baldi, 54 NY2d 137, 147 [1981]; People v Walker, 50 AD3d1452, 1453-1454 [2008], lv denied 11 NY3d 795 [2008],reconsideration denied 11 NY3d 931 [2008]). Defendant's further contentions inhis pro se supplemental brief that he was otherwise deprived of effective assistance ofcounsel and that he is entitled to a new trial in light of newly discovered exculpatoryevidence are based on matters dehors the record and thus cannot be reviewed on directappeal (see People vRohlehr, 87 AD3d 603, 604 [2011]; People v Dawkins, 81 AD3d 972, 972 [2011], lvdenied 17 NY3d 794 [2011], reconsideration denied 17 NY3d 858 [2011]).
We reject defendant's contention in appeal No. 2 that the People failed to meet theirburden of establishing the amount of restitution by a preponderance of the evidence(see CPL 400.30 [4]; People v Tzitzikalakis, 8 NY3d 217, 221-222 [2007]). Thevictim testified at the restitution hearing and provided a detailed breakdown of the valueof the stolen items as well as documents establishing the cost of replacing the ignitionand locks on her vehicle, which was returned to her. In addition, the amount ofrestitution owed to the victim's insurance company, which was financially harmed byreimbursing the victim for a portion of the cost of changing the ignition and locks on hervehicle, was supported by the claim it submitted to the Genesee County ProbationDepartment. It is immaterial that an employee of the insurance company did not testify atthe restitution hearing because "[a]ny relevant evidence, not legally privileged, may bereceived [at a restitution hearing] regardless of its admissibility under theexclusionary rules of evidence" (CPL 400.30 [4] [emphasis added]; seeTzitzikalakis, 8 NY3d at 221). Present—Scudder, P.J., Peradotto, Carni,Lindley and Whalen, JJ.