Opinion
980 KA 18-02111
02-03-2023
The PEOPLE of the State of New York, Respondent, v. John A. MCKOY, Defendant-Appellant.
LELAND D. MCCORMAC, III, INTERIM PUBLIC DEFENDER, UTICA (JAMES P. GODEMANN OF COUNSEL), FOR DEFENDANT-APPELLANT. SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (EVAN A. ESSWEIN OF COUNSEL), FOR RESPONDENT.
LELAND D. MCCORMAC, III, INTERIM PUBLIC DEFENDER, UTICA (JAMES P. GODEMANN OF COUNSEL), FOR DEFENDANT-APPELLANT.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (EVAN A. ESSWEIN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CURRAN, MONTOUR, AND OGDEN, 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, inter alia, burglary in the second degree ( Penal Law § 140.25 [2] ) and attempted burglary in the second degree ( §§ 110.00, 140.25 [2] ), arising out of two separate incidents. Contrary to defendant's contention, the evidence, viewed in the light most favorable to the People (see People v. Delamota , 18 N.Y.3d 107, 113, 936 N.Y.S.2d 614, 960 N.E.2d 383 [2011] ), is legally sufficient to support the conviction (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). That evidence includes the presence of defendant's blood at both crime scenes, including in the specific areas where the perpetrator sought to gain entry and, in the case of the completed burglary, inside the residence where the owner discovered that personal property was missing. Thus, the element of identity was established by "a compelling chain of circumstantial evidence that had no reasonable explanation except that defendant was ... the perpetrator[ ]" ( People v. Geroyianis , 96 A.D.3d 1641, 1642, 946 N.Y.S.2d 803 [4th Dept. 2012], lv denied 19 N.Y.3d 996, 951 N.Y.S.2d 472, 975 N.E.2d 918 [2012], reconsideration denied 19 N.Y.3d 1102, 955 N.Y.S.2d 557, 979 N.E.2d 818 [2012] [internal quotation marks omitted]; see also People v. Black , 110 A.D.3d 569, 569, 973 N.Y.S.2d 203 [1st Dept. 2013], lv denied 23 N.Y.3d 1059, 994 N.Y.S.2d 319, 18 N.E.3d 1140 [2014] ). Furthermore, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Finally, the certificate of disposition must be amended to reflect that defendant was sentenced as a second violent felony offender (see People v. St. Denis , 207 A.D.3d 1084, 1084-1085, 169 N.Y.S.3d 573 [4th Dept. 2022] ; see generally People v. Saxton , 32 A.D.3d 1286, 1286-1287, 821 N.Y.S.2d 353 [4th Dept. 2006] ).