Opinion
2011-01498
11-19-2014
The PEOPLE, etc., respondent, v. Stephen COLLINS, appellant.
Robert C. Mitchell, Riverhead, N.Y. (Kirk R. Brandt of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Rosalind C. Gray and Marcia Kucera of counsel), for respondent.
Robert C. Mitchell, Riverhead, N.Y. (Kirk R. Brandt of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Rosalind C. Gray and Marcia Kucera of counsel), for respondent.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, and JOSEPH J. MALTESE, JJ.
Opinion Appeal by the defendant from a judgment of the County Court, Suffolk County (Hudson, J.), rendered December 7, 2010, convicting him of burglary in the second degree (three counts), grand larceny in the fourth degree, petit larceny, grand larceny in the third degree, criminal mischief in the third degree, criminal trespass in the second degree, and criminal possession of stolen property in the fifth degree (three counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support his convictions of burglary in the second degree (three counts), grand larceny in the third and fourth degrees, petit larceny, and criminal possession of stolen property in the fifth degree (three counts) is unpreserved for appellate review, as he did not raise the specific contentions he now raises on appeal when making his motion for a trial order of dismissal (see People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ; People v. Crooks, 118 A.D.3d 816, 817, 987 N.Y.S.2d 178 ). 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 ), the evidence was legally sufficient to establish the defendant's guilt of those crimes beyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt of those crimes was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ). The defendant's contention that the County Court erred in admitting evidence of certain uncharged crimes is unpreserved for appellate review (see CPL 470.05[2] ; People v. Kirksey, 107 A.D.3d 825, 826, 966 N.Y.S.2d 682 ; People v. McFarlane, 106 A.D.3d 836, 837, 964 N.Y.S.2d 626 ) and, in any event, without merit. Evidence of uncharged crimes may be admitted “when the defendant employs some unique, unusual, or distinctive modus operandi in an uncharged crime that is relevant to proving his identity as the perpetrator of the crime charged” (People v. Mateo, 93 N.Y.2d 327, 332, 690 N.Y.S.2d 527, 712 N.E.2d 692 [emphasis omitted] ). In that event, evidence of the uncharged crime may be admitted “unless the defendant's identity is conclusively established by other evidence” (People v. Agina, 18 N.Y.3d 600, 603, 942 N.Y.S.2d 411, 965 N.E.2d 913 [internal quotation marks and emphasis omitted]; see People v. Allweiss, 48 N.Y.2d 40, 47, 421 N.Y.S.2d 341, 396 N.E.2d 735 ; People v. Littlejohn, 112 A.D.3d 67, 74, 974 N.Y.S.2d 77 ). Contrary to the defendant's contention, his identity as the perpetrator of the charged crimes was not conclusively established by his admissions to detectives, since the defense theory at trial was that the admissions were involuntary or coerced. Therefore, the evidence that he committed uncharged crimes employing a distinctive modus operandi identical to that employed in the commission of the charged crimes was properly admitted to prove his identity.
The defendant's contention that certain comments made by the prosecutor during summation were improper and, thus, deprived him of a fair trial, is unpreserved for appellate review (see CPL 470.05[2] ), because he made no objection to the challenged comments (see People v. Hanson, 100 A.D.3d 771, 772, 953 N.Y.S.2d 684, lv. granted 21 N.Y.3d 1016, 971 N.Y.S.2d 498, 994 N.E.2d 394 ). In any event, although some of the prosecutor's remarks were improper, they did not deprive the defendant of a fair trial, and any other error in this regard was harmless, as there was overwhelming evidence of the defendant's guilt, and no significant probability that the error contributed to the defendant's conviction (see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Roscher, 114 A.D.3d 812, 813, 980 N.Y.S.2d 146 ; People v. Ward, 106 A.D.3d 842, 843, 964 N.Y.S.2d 642 ).
The defendant's contention that, in imposing sentence, the County Court penalized him for exercising his right to a jury trial is unpreserved for appellate review and, in any event, without merit (see People v. Fernandez, 115 A.D.3d 977, 979, 982 N.Y.S.2d 174 ). Moreover, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).