PEOPLE v. JONES (1997)

Appeal by the defendant from a judgment of the County Court, Westchester County (Smith, J.), rendered December 21, 1995, convicting him of burglary in the third degree, criminal mischief in the fourth degree, and petit larceny, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

 The hammer recovered by the police from the defendant's automobile was properly admitted into evidence (see, California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406;  People v. Galak, 81 N.Y.2d 463, 600 N.Y.S.2d 185, 616 N.E.2d 842;  People v. Belton, 55 N.Y.2d 49, 447 N.Y.S.2d 873, 432 N.E.2d 745).

The defendant's contention that the trial evidence, which consisted primarily of fingerprint evidence from the crime scene, was legally insufficient to establish his guilt, is unpreserved for appellate review (see, CPL 470.05 [2];  People v. Udzinski, 146 A.D.2d 245, 250, 541 N.Y.S.2d 9).   In any event, viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see, People v. Murray, 168 A.D.2d 573, 562 N.Y.S.2d 788;  see also, People v. Sital, 220 A.D.2d 784, 785, 633 N.Y.S.2d 332;  People v. Minore, 110 A.D.2d 661, 487 N.Y.S.2d 393;  People v. Sparacino, 150 A.D.2d 814, 542 N.Y.S.2d 235;  People v. Vasquez, 131 A.D.2d 523, 516 N.Y.S.2d 257;  People v. Talley, 110 A.D.2d 792, 793, 488 N.Y.S.2d 62;  People v. Pena, 99 A.D.2d 846, 847, 472 N.Y.S.2d 156;  People v. Bullard, 59 A.D.2d 786, 787, 398 N.Y.S.2d 744).   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5] ).

 Contrary to the defendant's contention, the trial court was not obligated to use the “moral certainty” language in its circumstantial evidence charge.   The charge as given adequately conveyed, in substance, the applicable legal principles (see, People v. Sanchez, 61 N.Y.2d 1022, 1024, 475 N.Y.S.2d 376, 463 N.E.2d 1228;  see also, People v. Ford, 66 N.Y.2d 428, 441, 497 N.Y.S.2d 637, 488 N.E.2d 458;  People v. O'Gara, 239 A.D.2d 215, 657 N.Y.S.2d 661;  People v. Davis, 206 A.D.2d 833, 834, 615 N.Y.S.2d 553;  People v. Garvin, 193 A.D.2d 814, 815, 598 N.Y.S.2d 997;  People v. Pate, 182 A.D.2d 717, 718, 582 N.Y.S.2d 448;  People v. Harden, 174 A.D.2d 691, 571 N.Y.S.2d 546).

The defendant's sentence was not excessive (see, People v. Suitte, 90 A.D.2d 80, 85, 455 N.Y.S.2d 675).

The defendant's remaining contentions are without merit.

MEMORANDUM BY THE COURT.