| People v MacDonald |
| 2014 NY Slip Op 00388 [113 AD3d 966] |
| January 23, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JohnF. MacDonald, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Brian Leeds of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Broome County(Cawley, J.), rendered August 30, 2011, convicting defendant following a nonjury trial ofthe crimes of burglary in the second degree, criminal mischief in the fourth degree andpetit larceny.
Defendant allegedly broke into a next-door apartment while the two people whoresided there were out and stole about 35 of their movie DVDs, which he then sold to apawn shop for less than $20. He later made an inculpatory statement to the victims at atime when one victim was wearing a recording device that had been provided by police.He was indicted on charges of burglary in the second degree, criminal mischief in thefourth degree and petit larceny. He waived his right to a jury trial and, following a benchtrial, defendant was found guilty of all charges. County Court sentenced him on theburglary conviction, as a second violent felony offender, to a prison term of seven yearswith five years of postrelease supervision. The other convictions resulted in one-year jailterms, with all sentences to run concurrently. Defendant appeals.
The verdict was not against the weight of the evidence. Where, as here, a differentverdict would not have been unreasonable, we "must, like the trier of fact below, weighthe relative probative force of conflicting testimony and the relative strength ofconflicting inferences that may be drawn from the testimony" (People v Bleakley,69 NY2d 490, 495 [1987] [internal quotation marks and citations omitted]; see People v Romero, 7 NY3d633, 643 [2006]; People v[*2]Fernandez, 106 AD3d 1281, 1282 [2013])."Great deference is accorded to the fact-finder's opportunity to view the witnesses, hearthe testimony and observe demeanor" (People v Romero, 7 NY3d at 644 [internalquotation marks and citations omitted]; see People v Race, 78 AD3d 1217, 1219-1220 [2010],lv denied 16 NY3d 835 [2011]; People v Mitchell, 55 AD3d 1048, 1051 [2008], lvdenied 12 NY3d 856 [2009]).
Proof at trial included testimony that defendant had visited the victims' apartmentearlier in the day, he knew that they were going to be out much of the day, and thevictims noticed that DVDs were missing upon returning. Defendant was confronted byone victim, and defendant eventually assured him that "it won't happen again" and toldhim where he had sold the DVDs. That victim convinced defendant to apologize to theother victim and, with police assistance, the apology was surreptitiously recorded. Anacquaintance of defendant testified that defendant had asked her to take him to a pawnshop to sell some DVDs and admitted to her that he had stolen the movies from aneighbor. Defendant testified, denying that he stole the DVDs and claiming that one ofthe victims had given him the DVDs to sell without the other victim's knowledge so theycould split the money. Defendant related that this individual became upset at the smallamount of money he received for the DVDs and, thereafter, defendant agreed toapologize to the other victim simply in an effort to keep peace with his neighbors.Conflicting proof was presented and the trier of fact did not credit defendant's version ofevents. Upon weighing and considering the proof in the record, and deferring to thefact-finder's credibility determination, we find that the verdict was supported by theweight of the evidence.
Next, defendant contends that County Court's questioning of one witnessimpermissibly bolstered the People's case. The issue was not preserved for review (see People v Hatchcock, 96AD3d 1082, 1085 [2012], lv denied 19 NY3d 997 [2012]) and, in any event,lacks merit. The two brief questions asked by the court in this nonjury trial served toclarify testimony that had just been given and did not deprive defendant of a fair trial (see People v Robinson, 67AD3d 1042, 1045 [2009], lv denied 13 NY3d 910 [2009]; see generallyPeople v Arnold, 98 NY2d 63, 67-68 [2002]).
Defendant, who has an extensive criminal record, received the mandatory minimumprison sentence, as a second violent felony offender, on the burglary conviction. There isno merit to his argument that his sentence is harsh and excessive (see People v Iadicicco, 100AD3d 1147, 1147 [2012]; People v Milot, 305 AD2d 729, 732 [2003],lv denied 100 NY2d 585 [2003]).
Peters, P.J., Stein and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.