Opinion
2016-220 S CR
07-12-2018
The PEOPLE of the State of New York, Respondent, v. Kevin S. STREET, Appellant.
Suffolk County Legal Aid Society (Leo Cuomo of counsel), for appellant. Suffolk County District Attorney (Alfred J. Croce of counsel), for respondent.
Suffolk County Legal Aid Society (Leo Cuomo of counsel), for appellant.
Suffolk County District Attorney (Alfred J. Croce of counsel), for respondent.
PRESENT: ANTHONY MARANO, P.J., JERRY GARGUILO, TERRY JANE RUDERMAN, JJ
ORDERED that the judgment of conviction is affirmed.
The People charged defendant, in an information, with petit larceny ( Penal Law § 155.25 ), following his apprehension while in the act of leaving a supermarket without having paid for steaks concealed under his jacket. At a nonjury trial, the store security guard testified that his attention had been alerted to defendant's presence by a clerk, who had stated, "There's ... a tall black guy in here with a black jacket with blue dirty pants. He always steals in this store." The guard then observed defendant retrieve four steaks from a freezer compartment, conceal the steaks under his jacket, and attempt to depart from the supermarket after bypassing the checkout area. The security guard detained defendant and subsequently photographed defendant seated next to a counter where, at the guard's direction, defendant had placed the steaks after removing them from under his jacket. The defendant signed a form admitting the theft of steaks. A police officer testified as to his observations of defendant and of the steaks alleged to have been stolen, and the fact that he had arrested defendant. Following the trial, defendant was convicted of the offese. Defendant appeals, arguing that the testimony as to the clerk's identification of defendant as someone who had previously stolen merchandise from the same store, and the admission of the photograph, violated his due process rights to a fair trial.
Defendant's challenge to the clerk's statementis not preserved for appellate review, as defendant failed to object to the statement (see CPL 470.05 [2 ]; People v. Rios , 96 AD3d 978, 978 [2012] ; People v. Dahlbender , 23 AD3d 493, 494 [2005] ; see also People v. Torres , 96 AD3d 881, 881-882 [2012] ). In any event, while the statement was prejudicial in that it suggested a "propensity towards crime" ( People v. Arafet , 13 NY3d 460, 465 [2009] ; see e.g. People v. Leonard , 29 NY3d 1, 7 [2017] [testimony that a defendant had previously committed the same acts as charged "is propensity evidence, tending to show that defendant committed the charged crime because he had done it before"] ), the evidence also had "a proper nonpropensity purpose" ( People v. Dorm , 12 NY3d 16, 19 [2009] ) in that it provided background information for the scrutiny directed at defendant's conduct in the supermarket (see People v. Johnson , 137 AD3d 811, 812 [2016] ; People v. Rivera , 116 AD3d 986, 986-987 [2014] ). To the extent that the statement's prejudice may have exceeded its probative value, the error was harmless, inasmuch as "[i]n a bench trial, the court is presumed to have considered only competent evidence in reaching its verdict" ( People v. LoMaglio , 124 AD3d 1414, 1416 [2015] ; e.g. People v. Moreno , 70 NY2d 403, 406 [1987] ; Matter of Dandre H. , 89 AD3d 553, 554 [2011] ; People v. Kozlow , 46 AD3d 913, 915 [2007] ), and, in the absence of objection, it cannot be said that the judge considered inadmissible evidence (see People v. Pabon , 28 NY3d 147, 158 [2016] ; Matter of State of New York v. Kerry K. , 157 AD3d 172, 189 [2017] ). Further, in light of the overwhelming proof of defendant's guilt, which included evidence that defendant was caught in the act by a trained observer, that he admitted he had been present at the time and place the theft occurred, that he confessed, in the apprehension report (which he signed), that he had stolen property from the store, that a police officer observed defendant seated next to the steaks in question, and that a photographic record of the property stolen was authenticated by the person who took the photo, there was " ‘no significant probability...that the [factfinder] would have acquitted defendant had it not been for the error’ " ( People v. Arafet , 13 NY3d at 467, quoting People v. Crimmins , 36 NY2d 230, 241-242 [1975] ).
The photograph was properly admitted into evidence. Photographic evidence is admissible "if [it] tend[s] ‘to prove or disprove a disputed or material issue, to illustrate or elucidate other relevant evidence, or to corroborate or disprove some other evidence offered or to be offered’ ... [and] should be excluded ‘only if [its] sole purpose is to arouse the emotions of the [factfinder] and to prejudice the defendant’ " ( People v. Wood , 79 NY2d 958, 960 [1992], quoting People v. Pobliner , 32 NY2d 356, 369 [1973] ). The photograph, taken at the scene shortly after the offense and authenticated by the witness to the larceny, served to "corroborate[ ] the testimony of the...eyewitness" ( People v. Redmon , 81 AD3d 752, 752 [2011] ) with respect to identity, the basis of the investigation and arrest, and the nature and value of the stolen property (see e.g. People v. Chandler , 51 AD3d 941, 942 [2008] ). "The People were not bound to rely entirely on the testimony of [their witnesses]; ...and the photograph [was] admissible to elucidate and corroborate that testimony" ( People v. Stevens , 76 NY2d 833, 836 [1990] ). There was no objection that the exhibit had any inflammatory effect on the factfinder, much less that it was offered solely for that purpose or to prejudice the defense (see e.g. People v. Sampson , 67 AD3d 1031, 1032 [2009] ; People v. Cartwright , 61 AD3d 695, 696 [2009] ; People v. Chandler , 51 AD3d at 942 ).
Accordingly, the judgment of conviction is affirmed.
MARANO, P.J., GARGUILO and RUDERMAN, JJ., concur.