        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1354
KA 11-02610
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAMES E. HIGHSMITH, ALSO KNOWN AS JAMES E.
HIGHSMITH, III, DEFENDANT-APPELLANT.


LAW OFFICES OF JOSEPH D. WALDORF, P.C., ROCHESTER (JOSEPH D. WALDORF
OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Melchor E.
Castro, A.J.), rendered October 28, 2011. The judgment convicted
defendant, after a nonjury trial, of burglary in the first degree and
burglary in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him, after a
nonjury trial, of burglary in the first degree (Penal Law § 140.30
[2]) and burglary in the second degree (§ 140.25), defendant contends
that the People did not sufficiently corroborate the testimony of the
accomplices, as required by CPL 60.22 (1). We reject that contention.
It is well settled that “ ‘[t]he corroborative evidence need not show
the commission of the crime . . . It is enough if it tends to connect
the defendant with the commission of the crime in such a way as may
reasonably satisfy the jury that the accomplice is telling the
truth’ ” (People v Reome, 15 NY3d 188, 192-193, quoting People v
Dixon, 231 NY 111, 116). “[E]vidence that defendant was present at
the scene of the crime or was with the accomplices shortly before or
after the crime can, under certain circumstances, provide the
necessary corroboration of the accomplices’ testimony” (People v
Bolden, 161 AD2d 1126, 1126-1127, lv denied 76 NY2d 853). Here, three
accomplices testified that defendant planned the crime along with
them, accompanied them to the crime, acted as a lookout during the
crime, accompanied them to a motel room immediately after the crime,
and accepted his share of the proceeds of the crime, including cash
and drugs. An employee of the motel testified that defendant paid for
that motel room in cash, and defendant gave a statement to the police
admitting that he accompanied the codefendants to that room and paid
for the room. The employee’s testimony and defendant’s statement
                                 -2-                          1354
                                                         KA 11-02610

“ ‘harmonized’ ” with the accomplice testimony (People v McRae, 15
NY3d 761, 762, rearg denied 15 NY3d 902). Furthermore, mail addressed
to defendant was recovered from one of the vehicles used in the
commission of the crime (see generally People v Rodriguez, 22 NY3d
917, 918).

      Contrary to defendant’s contention, viewing the evidence in the
light most favorable to the People (see People v Williams, 84 NY2d
925, 926), we conclude that it is legally sufficient to support the
conviction (see generally People v Bleakley, 69 NY2d 490, 495).
Contrary to defendant’s further contention, viewing the evidence in
light of the elements of the crimes in this nonjury trial (see People
v Danielson, 9 NY3d 342, 349), we conclude that the verdict is not
against the weight of the evidence (see generally Bleakley, 69 NY2d at
495).

     Defendant’s contentions with respect to the sufficiency of the
evidence submitted to the grand jury are “not reviewable on appeal
because the grand jury minutes are not included in the record on
appeal” (People v Dilbert, 1 AD3d 967, 967-968, lv denied 1 NY3d 626;
see generally People v Lane, 47 AD3d 1125, 1127 n 3, lv denied 10 NY3d
866). In any event, “[i]t is well established that ‘[t]he validity of
an order denying any motion [to dismiss an indictment for legal
insufficiency of the grand jury evidence] is not reviewable upon an
appeal from an ensuing judgment of conviction based upon legally
sufficient trial evidence’ ” (People v Afrika, 79 AD3d 1678, 1679, lv
denied 17 NY3d 791, quoting CPL 210.30 [6]) and, as we concluded
herein, the trial evidence is legally sufficient. Finally, inasmuch
as the evidence, the law, and the circumstances of this case, viewed
in totality and as of the time of the representation, establish that
defense counsel provided meaningful representation, we reject
defendant’s contention that he was denied effective assistance of
counsel (see generally People v Baldi, 54 NY2d 137, 147).

     We have reviewed defendant’s remaining contention and conclude
that it lacks merit.




Entered:   January 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
