| People v Montgomery |
| 2015 NY Slip Op 01129 [125 AD3d 1455] |
| February 6, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vGordon L. Montgomery, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Jane I. Yoon of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Christopher M. Kvam of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Charles F. Crimi, Jr., A.J.),rendered July 23, 2010. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of stolen property in the fifth degree, criminal possession of a forgedinstrument in the second degree and identity theft in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of criminal possession of stolen property in the fifth degree (Penal Law§ 165.40), criminal possession of a forged instrument in the second degree(§ 170.25) and identity theft in the first degree (§ 190.80 [3]).The conviction is based upon defendant's possession of a "convenience check" issuedagainst the victim's credit card account, and his use of the convenience check to purchasemerchandise. Viewing the evidence in light of the elements of the crimes as charged tothe jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict finding thatdefendant was the person who committed the crimes is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). ThePeople presented evidence that included a store surveillance video and the testimony of apolice officer familiar with defendant who identified defendant after he viewed thevideo. The officer testified that he recognized defendant from his facial features anddistinctive bowlegged gait. In addition, the People presented evidence that defendant andthe victim had post office boxes at the same post office, and the jury was able to comparethe handwriting on the change of address form defendant submitted to the post officewith the handwriting on the convenience check. "[W]hile a different verdict may nothave been unreasonable, upon independently 'weigh[ing] the probative force ofconflicting testimony and the relative strength of conflicting inferences that may bedrawn from the testimony,' we conclude that the verdict is not against the weight of theevidence" (People v Cascio,79 AD3d 1809, 1811 [2010], lv denied 16 NY3d 893 [2011]; see People v Miller, 93 AD3d882, 882-883 [2012], lv denied 19 NY3d 975 [2012], reconsiderationdenied 20 NY3d 1063 [2013]). Present—Centra, J.P., Fahey, Lindley,Sconiers and Whalen, JJ.