People v Carmel

2016 NY Slip Op 03329 [138 AD3d 1448]

April 29, 2016

Appellate Division, Fourth Department

As corrected through Wednesday, June 1, 2016

[*1]

The People of the State of New York, Respondent, vKeith E. Carmel, Appellant.

Timothy P. Donaher, Public Defender, Rochester (Drew R. Dubrin of counsel), fordefendant-appellant.

Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of counsel), forrespondent.

Appeal from a judgment of the Supreme Court, Monroe County (Joanne M.Winslow, J.), rendered July 11, 2012. The judgment convicted defendant, upon a juryverdict, of burglary in the second degree, criminal possession of a forged instrument inthe second degree and criminal possession of stolen property in the fourth degree.

It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.

Memorandum: On appeal from a judgment convicting him upon a jury verdict of,inter alia, burglary in the second degree (Penal Law § 140.25 [2]),defendant contends that the evidence is legally insufficient to support the conviction ofburglary because the People failed to present any direct evidence that defendant was theperson who entered and stole property from the victims' home. We reject that contention.The People presented evidence establishing that the victims' home was unlawfullyentered after they went to sleep at 10:00 p.m. on July 15, 2010 and that various itemswere taken from their home. At approximately 12:50 a.m. on July 16, 2010, recordingsfrom surveillance cameras at a 24-hour supermarket located 11/2 milesfrom the victims' residence showed defendant at the supermarket with a bicycle and abackpack that were stolen from the residence. Moreover, defendant purchased variousitems at the supermarket using a credit card that was stolen from the residence. Weconclude that "[d]efendant's recent and exclusive possession of the property thatconstituted the fruits of the burglary, and the absence of credible evidence that the crimewas committed by someone else, justified the inference that defendant committed theburglary" (People v Marshall, 198 AD2d 907, 907 [1993], lv denied 82NY2d 898 [1993]; see People vWalker, 125 AD3d 1507, 1507-1508 [2015], lv denied 25 NY3d 1209[2015]). Viewing the evidence in light of the elements of the crimes as charged to thejury (see People vDanielson, 9 NY3d 342, 349 [2007]), we likewise conclude that the verdict isnot against the weight of the evidence (see generally People v Bleakley, 69 NY2d490, 495 [1987]).

We reject defendant's further contention that he was denied effective assistance ofcounsel. Defendant has failed to establish the absence of any strategic or other legitimateexplanation for defense counsel's alleged error in failing to object to identificationtestimony (see generally Peoplev Caban, 5 NY3d 143, 152 [2005]), and we conclude that defendant receivedmeaningful representation (see generally People v Baldi, 54 NY2d 137, 147[1981]). Present—Smith, J.P., DeJoseph, NeMoyer, Troutman and Scudder,JJ.