Opinion
476 KA 16-01907
06-11-2021
The PEOPLE of the State of New York, Respondent, v. Justin T. JACOBS, Defendant-Appellant.
AMDURSKY, PELKY, FENNELL & WALLEN, P.C., OSWEGO (COURTNEY S. RADICK OF COUNSEL), FOR DEFENDANT-APPELLANT. GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO ( AMY L. HALLENBECK OF COUNSEL), FOR RESPONDENT.
AMDURSKY, PELKY, FENNELL & WALLEN, P.C., OSWEGO (COURTNEY S. RADICK OF COUNSEL), FOR DEFENDANT-APPELLANT.
GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO ( AMY L. HALLENBECK OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, LINDLEY, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the second degree ( Penal Law § 140.25 [2] ). The conviction stems from defendant's conduct in stealing, with the assistance of his girlfriend, money and property from the home of the girlfriend's mother.
Defendant contends that the evidence is legally insufficient to support the conviction because the testimony of his accomplice was not supported by the requisite corroborative evidence ( see CPL 60.22 [1] ). That contention is not preserved for our review inasmuch as defendant's motion for a trial order of dismissal was not " ‘specifically directed’ at [that] alleged error" ( People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ). In any event, the contention lacks merit ( see People v. Davis , 28 N.Y.3d 294, 303, 44 N.Y.S.3d 358, 66 N.E.3d 1076 [2016] ; People v. Baska , 191 A.D.3d 1432, 1433, 138 N.Y.S.3d 433 [4th Dept. 2021] ; People v. Highsmith , 124 A.D.3d 1363, 1364, 1 N.Y.S.3d 674 [4th Dept. 2015], lv denied 25 N.Y.3d 1202, 16 N.Y.S.3d 524, 37 N.E.3d 1167 [2015] ).
We reject defendant's further contention that Supreme Court erred in allowing the People to introduce evidence of his involvement with his girlfriend in an uncharged larceny from the truck of the girlfriend's mother, which occurred 10 days after the burglary but before the burglary had been discovered. The evidence of an uncharged larceny was properly admitted under the common scheme or plan exception to the Molineux rule ( see People v. Lukens , 107 A.D.3d 1406, 1407, 966 N.Y.S.2d 633 [4th Dept. 2013], lv denied 22 N.Y.3d 957, 977 N.Y.S.2d 188, 999 N.E.2d 553 [2013] ; People v. Austin , 13 A.D.3d 1196, 1197, 786 N.Y.S.2d 882 [4th Dept. 2004], lv denied 5 N.Y.3d 785, 801 N.Y.S.2d 805, 835 N.E.2d 665 [2005] ; People v. Washpun , 134 A.D.2d 858, 858, 521 N.Y.S.2d 915 [4th Dept. 1987], lv denied 70 N.Y.2d 1012, 526 N.Y.S.2d 946, 521 N.E.2d 1089 [1988] ).
Defendant failed to preserve for our review his contention that he was penalized for exercising his right to a trial ( see People v. Smith , 187 A.D.3d 1652, 1656, 132 N.Y.S.3d 498 [4th Dept. 2020], lv denied 36 N.Y.3d 1054, 140 N.Y.S.3d 870, 164 N.E.3d 957 [2021] ; People v. Cotton , 184 A.D.3d 1145, 1149, 126 N.Y.S.3d 287 [4th Dept. 2020], lv denied 35 N.Y.3d 1112, 133 N.Y.S.3d 507, 158 N.E.3d 524 [2020] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see CPL 470.15 [6] [a] ). Finally, given defendant's extensive criminal record, we perceive no basis in the record to modify the sentence in the interest of justice.