Opinion
1448 KA 10-01824.
02-06-2015
The PEOPLE of the State of New York, Respondent, v. Gordon L. MONTGOMERY, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Jane I. Yoon of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Christopher M. Kvam of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Jane I. Yoon of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Christopher M. Kvam of Counsel), for Respondent.
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, and WHALEN, JJ.
Opinion
MEMORANDUM:Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of stolen property in the fifth degree (Penal Law § 165.40 ), criminal possession of a forged instrument in the second degree (§ 170.25 ) and identity theft in the first degree (§ 190.80[3] ). The conviction is based upon defendant's possession of a “convenience check” issued against the victim's credit card account, and his use of the convenience check to purchase merchandise. 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 ), we conclude that the verdict finding that defendant was the person who committed the crimes is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). The People presented evidence that included a store surveillance video and the testimony of a police officer familiar with defendant who identified defendant after he viewed the video. The officer testified that he recognized defendant from his facial features and distinctive bowlegged gait. In addition, the People presented evidence that defendant and the victim had post office boxes at the same post office, and the jury was able to compare the handwriting on the change of address form defendant submitted to the post office with the handwriting on the convenience check. “[W]hile a different verdict may not have been unreasonable, upon independently ‘weigh[ing] the probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony,’ we conclude that the verdict is not against the weight of the evidence” (People v. Cascio, 79 A.D.3d 1809, 1811, 914 N.Y.S.2d 490, lv. denied 16 N.Y.3d 893, 926 N.Y.S.2d 29, 949 N.E.2d 977 ; see People v. Miller, 93 A.D.3d 882, 882–883, 939 N.Y.S.2d 186, lv. denied 19 N.Y.3d 975, 950 N.Y.S.2d 358, 973 N.E.2d 768, reconsideration denied 20 N.Y.3d 1063, 962 N.Y.S.2d 614, 985 N.E.2d 924 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.