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

1420
KA 11-02608
PRESENT: SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

SHAWN D. WEEZORAK, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER, THE ABBATOY LAW FIRM,
PLLC (DAVID M. ABBATOY, JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Daniel J. Doyle, J.), rendered October 21, 2011. The judgment
convicted defendant, after a nonjury trial, of overdriving, torturing
and injuring animals in violation of Agriculture and Markets Law §
353.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a nonjury verdict of overdriving, torturing and injuring animals
(Agriculture and Markets Law § 353). The charges arose from an
incident in which defendant punched his dog and held its head
underwater in a bathtub, after the dog excreted in defendant’s home.
Contrary to defendant’s contention, viewing the evidence in light of
the elements of the crime in this nonjury trial, we conclude that “an
acquittal would have been unreasonable . . . , and thus the verdict is
not against the weight of the evidence” (People v Kreutter, 121 AD3d
1534, 1535-1536, lv denied 25 NY3d 990). We conclude that defendant
abandoned his further contention that Supreme Court erred in refusing
to suppress the dog’s exhumed remains because the warrantless search
was illegal. Although defendant initially moved to suppress the
evidence on that ground, he expressly limited the scope of the
suppression hearing in his written closing statement following the
hearing to the custodial interrogation issue, and he also failed to
seek a ruling on that part of his omnibus motion in which he argued
that the search and seizure was illegal (see People v Britton, 113
AD3d 1101, 1102, lv denied 22 NY3d 1154; see generally People v Adams,
90 AD3d 1508, 1509, lv denied 18 NY3d 954).

Entered:    December 31, 2015                      Frances E. Cafarell
                                                   Clerk of the Court
