| People v Sindoni |
| 2019 NY Slip Op 08731 [178 AD3d 1128] |
| December 5, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Joseph G. Sindoni, Appellant. |
John R. Trice, Elmira, for appellant.
Joseph G. Fazzary, District Attorney, Watkins Glen (John C. Tunney of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the County Court of Schuyler County (Morris, J.),rendered April 27, 2017, upon a verdict convicting defendant of the crimes of burglary in thesecond degree, grand larceny in the third degree, criminal mischief in the third degree andunauthorized use of a vehicle in the first degree.
Defendant was charged with burglary in the second degree, grand larceny in the third degree,criminal mischief in the third degree and unauthorized use of a vehicle in the first degree, whichall stemmed from the June 2015 burglary of a Schuyler County home. Following a jury trial, hewas convicted as charged. County Court sentenced defendant as a second violent felony offenderto a prison term of 13
Defendant argues that the verdict is against the weight of the evidence, primarily relyingupon the victim's failure to mention defendant's visible and distinguishing features, includingseveral tattoos, a brand-type mark on his leg, and a ponytail. At trial, the victim testified that shearrived home in the afternoon and found a truck with dual rear wheels on each side parked in herdriveway. As she approached her house, she noticed a window casing resting on her porch andsaw damage to her front door. She called 911 for emergency assistance and, while she was on thecall, a man carrying a "sack" ran alongside the house toward the truck, made eye contact with thevictim, entered the truck and drove off. The victim testified that, in total, she viewed the man for30 to 45 seconds, saw his face, back and side profile and, at one point, was two to three feet fromthe man, causing her to reach out and nearly touch him.
Approximately one week after the burglary, a Tioga County resident found a pillowcasecontaining various items in his backyard and turned it over to law enforcement. The resident'sbackyard abutted a mobile home park where defendant's relative lived at the time of thecommission of the crimes. Coworkers and other relatives testified that defendant was known tospend time at this mobile home park. The pillowcase and its contents were determined to bevarious items taken from the victim's home. The pillowcase also contained a pair of used gloves.Testing revealed that defendant was a major contributor of DNA found in these gloves. Thevictim testified that she did not keep gloves of that kind in her home, and an owner of thebusiness that employed defendant testified that similar gloves were used in the business andmade available to the employees. At trial, the victim identified defendant as the man she saw ather home. She described what he was wearing at that time in detail. She described the man's faceat the time of the crime as "drawn and thinner" with a "little scruff, beard," as if he had notshaved in a few days. On cross-examination, the victim stated that she could not see the man'shair due to the backwards baseball cap he was wearing, and that she did not notice any otherfeatures, such as tattoos or a brand-type burn mark. Coworkers and relatives of defendanttestified and described his appearance at the time the crimes were committed, noting thatdefendant had tattoos on his forearms and lower leg, a brand-type mark on his leg, and a longponytail.
Following the incident, a lieutenant with the Schulyer County Sheriff's Department providedthe victim with a "six-pack," that is, an array of six photos of possible perpetrators. Thislieutenant testified that the victim eliminated all but two of the photos, and stated that she wasleaning toward the photo of defendant. The victim provided a partial license plate of the truck;this truck was later recovered in a nature preserve approximately two miles from where thepillowcase had been found. The truck was determined to be registered to defendant's employer.The lieutenant thereafter questioned the owners and employees of the business, but he did notspeak to defendant, as defendant did not return to work after the crimes were committed. Thelieutenant further testified that he focused his investigation on employees, as there was noevidence suggesting that the truck was taken by an individual without access to the businessfacility. One of the business owners indicated that the facility's combination locks were changedwhen employees were fired or otherwise terminated, but, upon cross-examination, admitted thathe could not recall when the locks were last changed prior to the crimes, and that an employeecould easily tell a nonemployee the combinations. One of the business owners testified thatdefendant did not have permission to use the employer's vehicles, as he did not have a driver'slicense.
Defendant showcased his tattoos and the brand-type burn mark to the jury, presented witnesstestimony as to the visibility of his features at the time the crimes were committed, and providedalibi evidence. The alibi evidence by defendant's witnesses provided imprecise descriptions ofdefendant's activities and locations on the day the crimes were committed, and their testimonywas, in part, contradicted by other physical evidence presented at trial.
The inconsistencies in the testimony as to defendant's description, together with the alibievidence, presented "credibility issues for the trier of fact to determine" (People v Wilson, 71 AD3d 1333,1334 [2010]; see People v Douglas,57 AD3d 1105, 1106 [2008], lv denied 12 NY3d 783 [2009]). Had the jury crediteddefendant's arguments and this evidence, a different verdict would not have been unreasonable(see People v Newman, 169 AD3d1157, 1160 [2019]; People vWinchell, 46 AD3d 1096, 1097 [2007], lv denied 10 NY3d 818 [2008]). Assuch, "[this Court] must, like the trier of fact below, weigh the relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may be drawn fromthe testimony" (People v Bleakley, 69 NY2d 490, 495 [1987] [internal quotation marksand citation omitted]; see People vStover, 174 AD3d 1150, 1153 [2019], lv denied 34 NY3d 954 [2019]; People v Robinson, 156 AD3d1123, 1125 [2017], lv denied 30 NY3d 1119 [2018]). Viewing all of the evidence ina neutral light and giving deference to the credibility determinations made by thejury—including the victim's identification of the defendant during the photo array and attrial, witness testimony describing defendant's features at the time the crimes were committed,the DNA evidence recovered from the gloves, witness testimony as to defendant's alibi, and theemployer's testimony as to access to the truck and the facility where its keys werestored—we do not find that the verdict was against the weight of evidence (see People v Taylor, 163 AD3d1275, 1277 [2018], lv denied 32 NY3d 1068 [2018]; People v Zeller, 151 AD3d 1272,1274-1275 [2017]; People v Cooley,149 AD3d 1268, 1270 [2017], lv denied 30 NY3d 979 [2017]).
Clark, Mulvey, Aarons and Pritzker, JJ., concur. Ordered that the judgment is affirmed.