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

647
KA 10-02201
PRESENT: CENTRA, J.P., FAHEY, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

PAUL M. LARRABEE, DEFENDANT-APPELLANT.


MARY R. HUMPHREY, NEW HARTFORD, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Barry M.
Donalty, J.), rendered August 19, 2010. The judgment convicted
defendant, upon a jury verdict, of burglary in the second degree and
possession of burglar’s tools.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of burglary in the second degree (Penal Law §
140.25 [2]) and possession of burglar’s tools (§ 140.35). Defendant
failed to preserve for our review his challenge to the legal
sufficiency of the evidence inasmuch as he made only a general motion
for a trial order of dismissal (see People v Gray, 86 NY2d 10, 19),
and he failed to renew that motion after presenting evidence (see
People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678). In any
event, that contention lacks merit (see generally People v Bleakley,
69 NY2d 490, 495). Viewing the evidence in light of the elements of
the crimes as charged to the jury (see People v Danielson, 9 NY3d 342,
349), we further conclude that the verdict is not against the weight
of the evidence (see generally Bleakley, 69 NY2d at 495).
“[R]esolution of issues of credibility, as well as the weight to be
accorded to the evidence presented, are primarily questions to be
determined by the jury” (People v Witherspoon, 66 AD3d 1456, 1457, lv
denied 13 NY3d 942 [internal quotation marks omitted]).

     We agree with defendant that County Court erred in admitting
evidence with respect to modifications made to the victim’s home after
the burglary and as to the effect of the burglary on the children who
resided in that home (see People v Kelly, 71 AD3d 1520, 1521, lv
denied 15 NY3d 775; see generally People v Scarola, 71 NY2d 769, 777).
We note that, even assuming, arguendo, that defendant’s contention is
unpreserved for our review, we would nevertheless exercise our power
                                 -2-                          647
                                                        KA 10-02201

to review it as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]). We conclude, however, that the error is harmless
inasmuch as the evidence of defendant’s guilt is overwhelming, and
there is no significant probability that defendant would have been
acquitted but for the admission of that testimony (see generally
People v Crimmins, 36 NY2d 230, 241-242).




Entered:   June 14, 2013                       Frances E. Cafarell
                                               Clerk of the Court
