PEOPLE v. HOWELL (2007)

 Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the third degree (Penal Law § 140.20) and grand larceny in the fourth degree (§ 155.30[1] ).   Contrary to defendant's contention, the evidence 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).   Fingerprint evidence alone is legally sufficient evidence to support a conviction under appropriate circumstances (see People v. Rusho, 291 A.D.2d 855, 737 N.Y.S.2d 725, lv. denied 98 N.Y.2d 680, 746 N.Y.S.2d 470, 774 N.E.2d 235).   Viewed in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), the evidence established that defendant's fingerprint was found on a beer bottle that was left near the burglarized vehicle on the night that the crimes were committed.   The vehicle was parked in a gravel pit located in the Town of Phelps, and the evidence established that it did not appear that members of the public had previously entered the gravel pit.   Defendant, a resident of Rochester, told the police that he had not been in the Phelps area for approximately five years.   Under these circumstances, the fingerprint evidence “may not be accounted for by any hypothesis of defendant's innocence, and thus the conviction is supported by legally sufficient evidence” (Rusho, 291 A.D.2d at 856, 737 N.Y.S.2d 725).

 We reject defendant's further contention that the People failed to meet their burden of proving the amount of restitution owed by a preponderance of the evidence (see Penal Law § 60.27[2];  CPL 400.30[4];  People v. Tzitzikalakis, 8 N.Y.3d 217, 221, 832 N.Y.S.2d 120, 864 N.E.2d 44).   The People met their burden by presenting the testimony of the victim at the restitution hearing establishing his out-of-pocket expenses (see People v. Senecal, 31 A.D.3d 980, 817 N.Y.S.2d 923;  People v. Shortell, 30 A.D.3d 837, 816 N.Y.S.2d 769;  People v. Morales, 256 A.D.2d 729, 682 N.Y.S.2d 681, lv. denied 95 N.Y.2d 868, 715 N.Y.S.2d 223, 738 N.E.2d 371). Defendant offered no evidence to the contrary, despite the fact that County Court granted his request for an adjournment for that purpose, as well as the fact that the court previously granted defendant's motion for funds to employ a private investigator in preparation for the restitution hearing.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: