| People v Collins |
| 2014 NY Slip Op 08041 [122 AD3d 873] |
| November 19, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Stephen Collins, Appellant. |
Robert C. Mitchell, Riverhead, N.Y. (Kirk R. Brandt of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Rosalind C. Gray andMarcia Kucera of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Hudson, J.), rendered December 7, 2010, convicting him of burglary in the seconddegree (three counts), grand larceny in the fourth degree, petit larceny, grand larceny inthe third degree, criminal mischief in the third degree, criminal trespass in the seconddegree, and criminal possession of stolen property in the fifth degree (three counts), upona jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support hisconvictions of burglary in the second degree (three counts), grand larceny in the third andfourth degrees, petit larceny, and criminal possession of stolen property in the fifthdegree (three counts) is unpreserved for appellate review, as he did not raise the specificcontentions he now raises on appeal when making his motion for a trial order ofdismissal (see People vHawkins, 11 NY3d 484, 492 [2008]; People v Crooks, 118 AD3d 816, 817 [2014]). In anyevent, viewing the evidence in the light most favorable to the prosecution (see Peoplev Contes, 60 NY2d 620 [1983]), the evidence was legally sufficient to establish thedefendant's guilt of those crimes beyond a reasonable doubt. Moreover, upon ourindependent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guiltof those crimes was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The defendant's contention that the County Court erred in admitting evidence ofcertain uncharged crimes is unpreserved for appellate review (see CPL 470.05[2]; People v Kirksey, 107AD3d 825, 826 [2013]; People v McFarlane, 106 AD3d 836, 837 [2013]) and, inany event, without merit. Evidence of uncharged crimes may be admitted "when thedefendant employs some unique, unusual, or distinctive modus operandi in an unchargedcrime that is relevant to proving his identity as the perpetrator of the crime charged"(People v Mateo, 93 NY2d 327, 332 [1999] [emphasis omitted]). In that event,evidence of the uncharged crime may be admitted "unless the defendant's identity isconclusively established by other evidence" (People v Agina, 18 NY3d 600, 603 [2012] [internalquotation marks and emphasis omitted]; see People v Allweiss, 48 NY2d 40, 47[1979]; People v Littlejohn,112 AD3d 67, 74 [2013]). Contrary to the defendant's contention, his identity as theperpetrator of the charged crimes was not conclusively established by his admissions todetectives, since the defense theory at trial was that the admissions were involuntary orcoerced. Therefore, the evidence that he committed [*2]uncharged crimes employing a distinctive modus operandiidentical to that employed in the commission of the charged crimes was properlyadmitted to prove his identity.
The defendant's contention that certain comments made by the prosecutor duringsummation were improper and, thus, deprived him of a fair trial, is unpreserved forappellate review (see CPL 470.05 [2]), because he made no objection to thechallenged comments (seePeople v Hanson, 100 AD3d 771, 772 [2012], lv granted 21 NY3d 1016[2013]). In any event, although some of the prosecutor's remarks were improper, they didnot deprive the defendant of a fair trial, and any other error in this regard was harmless,as there was overwhelming evidence of the defendant's guilt, and no significantprobability that the error contributed to the defendant's conviction (see People vCrimmins, 36 NY2d 230, 241-242 [1975]; People v Roscher, 114 AD3d 812, 813 [2014]; People v Ward, 106 AD3d842, 843 [2013]).
The defendant's contention that, in imposing sentence, the County Court penalizedhim for exercising his right to a jury trial is unpreserved for appellate review and, in anyevent, without merit (see Peoplev Fernandez, 115 AD3d 977, 979 [2014]). Moreover, the sentence imposed wasnot excessive (see People v Suitte, 90 AD2d 80 [1982]). Dillon, J.P., Chambers,Cohen and Maltese, JJ., concur.