PEOPLE v. HERRERA

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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., Respondent, v. Julio HERRERA, Appellant.

Decided: February 22, 1999

DAVID S. RITTER, J.P., THOMAS R. SULLIVAN, MYRIAM J. ALTMAN and LEO F. McGINITY, JJ. Daniel Guttmann, Smithtown, N.Y., for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Andrew Neuwirth of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Golia, J.), rendered September 15, 1997, convicting him of criminal possession of stolen property in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's claim that the People did not adduce legally sufficient evidence of his knowledge that the subject laptop computer was stolen is unpreserved for appellate review (see, CPL 470.05[2];  People v. Johnson, 185 A.D.2d 247, 586 N.Y.S.2d 136;  see also, People v. Gray, 86 N.Y.2d 10, 19-21, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Bynum, 70 N.Y.2d 858, 523 N.Y.S.2d 492, 518 N.E.2d 4).

 In any event, viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish beyond a reasonable doubt that the defendant possessed the requisite mens rea, that the value of the stolen laptop computer was in excess of $1,000, and that, therefore, he was guilty of criminal possession of stolen property in the fourth degree.   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] ).

 The court properly precluded the defendant from introducing excerpts from the minutes of his codefendant's plea allocution as a declaration against the latter's penal interest.   The defendant failed to establish that the statements made by his codefendant, who subsequently failed to appear for sentencing, had the requisite trustworthiness and reliability as to warrant admission as a declaration against penal interest (see, People v. Brensic, 70 N.Y.2d 9, 14-15, 517 N.Y.S.2d 120, 509 N.E.2d 1226;  People v. Thomas, 68 N.Y.2d 194, 197-198, 200, 507 N.Y.S.2d 973, 500 N.E.2d 293, cert. denied 480 U.S. 948, 107 S.Ct. 1609, 94 L.Ed.2d 794;  People v. Settles, 46 N.Y.2d 154, 167, 412 N.Y.S.2d 874, 385 N.E.2d 612).

The defendant's remaining contentions are unpreserved for appellate review, without merit, or do not warrant reversal.

MEMORANDUM BY THE COURT.

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