PEOPLE v. GREEN (2008)

Appeal from a judgment of the County Court of Fulton County (Hoye, J.), rendered December 1, 2006, upon a verdict convicting defendant of the crimes of burglary in the third degree (seven counts), petit larceny (seven counts) and criminal contempt in the second degree (five counts).

Following a jury trial, defendant was convicted, as charged in two consolidated indictments, of seven counts of burglary in the third degree and seven counts of petit larceny as a result of his breaking into and stealing property from six local businesses within a three-week period.   He was also convicted of five counts of criminal contempt in the second degree.   County Court sentenced defendant, as a second felony offender, to an aggregate prison term of 15 to 30 years.   Defendant appeals, and we affirm.

Defendant argues that his conviction of five of the burglaries is not supported by legally sufficient evidence.   This challenge, however, is unpreserved as to all but one of the burglaries because no grounds were specified in the defense's motion for dismissal at the close of the proof (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995];  People v. Torres, 45 A.D.3d 1054, 1054, 845 N.Y.S.2d 544 [2007] ).   In any event, as to all of the burglaries, we find the People presented legally sufficient evidence that defendant was the perpetrator.

As to five of the burglaries, the testimony of defendant's girlfriend, who was his accomplice, placed him at the times and places of the crimes.   As to four of these burglaries, she also described how defendant had either physically broken into the business premises or returned to her car with a cash register in his possession.   This testimony was adequately corroborated by proof that police officers were able to recover the items of stolen property from the places where the girlfriend said they would be located, the presence of matching DNA at one of the crime scenes and the similarity of the modus operandi of the burglaries (see People v. Faulkner, 36 A.D.3d 951, 952, 826 N.Y.S.2d 831 [2007], lv. denied 8 N.Y.3d 922, 834 N.Y.S.2d 512, 866 N.E.2d 458 [2007];  People v. Mensche, 276 A.D.2d 834, 834-835, 714 N.Y.S.2d 377 [2000], lv. denied 95 N.Y.2d 966, 722 N.Y.S.2d 484, 745 N.E.2d 404 [2000] ).   As to the remaining two burglaries at Kenney's Marine, the evidence showed that they both matched defendant's modus operandi, defendant had money during the relevant time period despite being unemployed, and his DNA was also found at this scene after the second, similar break-in 12 days later.   Viewing the evidence in a neutral light and according deference to the jury's first-hand assessment of witness credibility and the inferences that could be drawn from the physical evidence, we further find that the jury gave the evidence the weight it should be accorded (see People v. Albanese, 38 A.D.3d 1015, 1017, 831 N.Y.S.2d 280 [2007], lv. denied 8 N.Y.3d 981, 838 N.Y.S.2d 484, 869 N.E.2d 660 [2007];  People v. Hutcherson, 25 A.D.3d 912, 914, 808 N.Y.S.2d 813 [2006], lv. denied 6 N.Y.3d 849, 816 N.Y.S.2d 755, 849 N.E.2d 978 [2006] ).

Defendant also contends that County Court erred in failing to give the jury a charge regarding circumstantial evidence as to the two burglaries at Kenney's Marine.   This challenge, however, was not preserved for our review because defendant failed to request an additional charge or object to the jury charge as given (see e.g. People v. Edwards, 39 A.D.3d 1078, 1081, 834 N.Y.S.2d 575 [2007] ), and we decline to exercise our interest of justice jurisdiction with respect to this issue (see CPL 470.05[2];  People v. Zakrzewski, 7 A.D.3d 823, 824, 777 N.Y.S.2d 207 [2004] ).

Lastly, we find neither an abuse of discretion nor extraordinary circumstances meriting a reduction in defendant's sentence (see People v. Gilliam, 300 A.D.2d 701, 703, 752 N.Y.S.2d 722 [2002], lv. denied 99 N.Y.2d 628, 760 N.Y.S.2d 109, 790 N.E.2d 283 [2003] ).   The term of imprisonment imposed on each of the burglary convictions is less than the maximum permitted by statute, and they were properly made consecutive (see Penal Law § 70.06[3][d];  [4][b];  People v. Mason, 2 A.D.3d 1207, 1207-1208, 768 N.Y.S.2d 843 [2003] ).   Also, to the extent that defendant cites his cocaine addiction as the reason for his impulsive criminal conduct, we note that he repeatedly failed to take advantage of the opportunities for drug counseling and treatment that previously had been offered to him.

ORDERED that the judgment is affirmed.

ROSE, J.

MERCURE, J.P., SPAIN, LAHTINEN and KANE, JJ., concur.