| People v Gaudiosi |
| 2013 NY Slip Op 07075 [110 AD3d 1347] |
| October 31, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JamesF. Gaudiosi, Appellant. |
—[*1] Michael A. Cozzolino, Special Prosecutor, Claverack, for respondent.
Rose, J. Appeal from a judgment of the County Court of Columbia County (Czajka,J.), rendered January 19, 2011, upon a verdict convicting defendant of the crimes ofrobbery in the second degree and criminal solicitation in the fourth degree.
Defendant was charged with the robbery of a convenience store and with attemptingto talk others into assisting him. After a jury trial, he was found guilty of robbery in thesecond degree and criminal solicitation in the fourth degree. He now appeals, contendingthat his convictions are not supported by legally sufficient evidence and are against theweight of the evidence.
We affirm. Although defendant's general motion to dismiss failed to preserve hislegal sufficiency claims (seePeople v Rivera, 101 AD3d 1478, 1480 n 2 [2012], lv denied 20 NY3d1103 [2013]; People vDozier, 94 AD3d 1226, 1227 [2012], lv denied 19 NY3d 996 [2012]),"our weight of the evidence review necessarily involves an evaluation of whether allelements of the charged crime[s] were proven beyond a reasonable doubt at trial" (People v Burch, 97 AD3d987, 989 n 2 [2012], lv denied 19 NY3d 1101 [2012] [internal quotationmarks and citations omitted]; see People v Mitchell, 94 AD3d 1252, 1254 n [2012],lv denied 19 NY3d 964 [2012]). Upon our review, we "weigh the relativeprobative force of conflicting testimony and the relative strength of conflictinginferences that may be drawn from the testimony while viewing the evidence in a neutrallight and giving deference to the jury's credibility assessments" (People v [*2]Johnson, 91 AD3d 1194, 1196 [2012], lvdenied 18 NY3d 995 [2012] [internal quotation marks and citation omitted]; seePeople v Bleakley, 69 NY2d 490, 495 [1987]).
Here, in the moments prior to the robbery, the store surveillance video capturedimages of a man with a beard, gray at the chin, and wearing a long sleeve green sweater,baseball cap and sunglasses. The clerk testified that a man with a beard and wearing a hatand glasses suddenly came behind the counter and began punching her repeatedly in theface. When she fled out the front door, the perpetrator ran out of the back of the storewith the contents of the cash register. Two witnesses testified that they saw defendant onthe day of the crime, with one witness recalling that defendant was bearded and wearinga green sweater, sunglasses and a baseball cap and the other testifying that defendant waswearing sunglasses and a baseball cap and was riding a bicycle in the direction of thestore. A forensic scientist testified that DNA taken from the handlebars of a bicyclefound by police outside of the store that day matched defendant's DNA. Another witnesstestified that she had overheard defendant tell her housemate on the day of the crime thathe needed a quick change of clothes and that the two argued when the housemate statedthat he "wanted his cut." Although defendant was clean shaven when he was arrestedlater that same day, the two arresting officers testified that they had seen defendant in thedays prior and observed him having a beard that was gray at the chin. Further, they notedthat defendant appeared to be freshly shaven at the time of his arrest. While the storeclerk could not identify defendant as her attacker because she had gotten a very brieflook at him, the store surveillance tape was played for the jury. Finally, two witnessestestified that, in the days prior to the crime, defendant had asked them if they wereinterested in helping him commit a robbery, with defendant telling one of the witnessesthat he planned on robbing the specific convenience store. Viewing this evidence in aneutral light and according appropriate deference to the jury's credibility determinations,we have no difficulty finding that the verdict is supported by the weight of the evidence(see People v Mateo, 101AD3d 1458, 1459-1460 [2012], lv denied 21 NY3d 913 [2013]; People v Powell, 101 AD3d1369, 1370 [2012], lv denied 21 NY3d 1019 [2013]).
Peters, P.J., Lahtinen and Garry, JJ., concur. Ordered that the judgment is affirmed.