People v Diehl

2015 NY Slip Op 03707

Decided on May 1, 2015

Appellate Division, Fourth Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 1, 2015

SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND DEJOSEPH, JJ.
558 KA 14-01950

GARUFI LAW P.C., BINGHAMTON (CARMEN M. GARUFI OF COUNSEL), FOR DEFENDANT-APPELLANT.

LEANNE K. MOSER, DISTRICT ATTORNEY, SYRACUSE, D.J. & J.A. CIRANDO, ESQS. (JOHN A. CIRANDO OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Lewis County Court (Donald E. Todd, A.J.), rendered December 4, 2013. The judgment convicted defendant, upon a nonjury verdict, of attempted grand larceny in the third degree, offering a false instrument for filing in the first degree and official misconduct.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him following a nonjury trial of, inter alia, attempted grand larceny in the third degree (Penal Law §§ 110.00, 155.35). Contrary to defendant's contention, County Court did not abuse its discretion in allowing the People to reopen their proof to properly identify defendant (see CPL 260.30 [7]). Although defendant is correct that the People initially failed to ask their witnesses on direct examination to identify defendant, the identity of defendant was

" simple to prove and not hotly contested' " (People v Whipple, 97 NY2d 1, 7).

By failing to renew his motion for a trial order of dismissal after presenting evidence, defendant failed to preserve his challenge to the legal sufficiency of the evidence (see People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678; People v Brown, 120 AD3d 1545, 1546, lv denied 24 NY3d 1082). Viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495). The court "was entitled to reject defendant's version of the events and, upon our review of the record, we cannot say that the court failed to give the evidence the weight that it should be

accorded' " (People v McCoy, 100 AD3d 1422, 1422).

Entered: May 1, 2015

Frances E. Cafarell

Clerk of the Court