Opinion
02-13-2015
The PEOPLE of the State of New York, Respondent, v. Gordie W. WALKER, Jr., Defendant–Appellant.
Williams, Heinl, Moody & Buschman, P.C., Auburn (Ryan James Muldoon of Counsel), for Defendant–Appellant. Gordie W. Walker, Jr., Defendant–Appellant pro se. Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of Counsel), for Respondent.
Williams, Heinl, Moody & Buschman, P.C., Auburn (Ryan James Muldoon of Counsel), for Defendant–Appellant.
Gordie W. Walker, Jr., Defendant–Appellant pro se.Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of Counsel), for Respondent.
PRESENT: PERADOTTO, J.P., CARNI, SCONIERS, and WHALEN, JJ.
Opinion
MEMORANDUM:On appeal from a judgment convicting him upon a jury verdict of burglary in the second degree (Penal Law § 140.25[2] ) and criminal possession of stolen property in the fifth degree (§ 165.40), defendant contends that the evidence is legally insufficient to support his conviction. Defendant's contention is unpreserved for our review inasmuch as he failed to renew his motion for a trial order of dismissal after presenting evidence (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396 ). In any event, that contention is without merit (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). The record establishes that defendant attended a party at the victim's apartment, that he was the last person to leave the party, and that he was alone in the apartment in the hours before the victim discovered that his property had been stolen. Further, the day after the party, defendant sold the property stolen from the victim. We thus conclude that “[d]efendant's recent and exclusive possession of the property that constituted the fruits of the burglary, and the absence of credible evidence that the crime was committed by someone else, justified the inference that defendant committed the burglary” and knowingly possessed stolen property (People v. Marshall, 198 A.D.2d 907, 907, 606 N.Y.S.2d 1017, lv. denied 82 N.Y.2d 898, 610 N.Y.S.2d 166, 632 N.E.2d 476 ; see People v. Jackson, 66 A.D.3d 1415, 1416, 885 N.Y.S.2d 856 ; People v. Scurlock, 33 A.D.3d 366, 366, 822 N.Y.S.2d 64, lv. denied 7 N.Y.3d 928, 827 N.Y.S.2d 697, 860 N.E.2d 999 ). 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 likewise conclude that the verdict is not against the weight of the evidence (see Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). We note that “[r]esolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury” (People v. Witherspoon, 66 A.D.3d 1456, 1457, 885 N.Y.S.2d 829, lv. denied 13 N.Y.3d 942, 895 N.Y.S.2d 333, 922 N.E.2d 922 [internal quotation marks omitted] ), and we see no reason to disturb the jury's resolution of those issues in this case.
Contrary to the contention of defendant in his pro se supplemental brief, we conclude that County Court properly granted the People's motion to amend the indictment to conform to the proof at trial inasmuch as “[t]he minor temporal correction did not change the theory of the prosecution or cause any prejudice to ... defendant” (People v. Hankins, 265 A.D.2d 572, 572, 697 N.Y.S.2d 144, lv. denied 94 N.Y.2d 880, 705 N.Y.S.2d 12, 726 N.E.2d 489 ; see CPL 200.70 [1 ]; People v. Lane, 47 A.D.3d 1125, 1127, 849 N.Y.S.2d 719, lv. denied 10 N.Y.3d 866, 860 N.Y.S.2d 492, 890 N.E.2d 255 ; People v. Grasso, 237 A.D.2d 741, 742, 655 N.Y.S.2d 160, lv. denied 89 N.Y.2d 1035, 659 N.Y.S.2d 866, 681 N.E.2d 1313 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.