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

1257
KA 11-01992
PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOHN W. MYERS, DEFENDANT-APPELLANT.


DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Matthew J.
Murphy, III, J.), rendered June 23, 2011. The judgment convicted
defendant, upon a jury verdict, of burglary in the third degree,
criminal mischief in the third degree and petit larceny.

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

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of, inter alia, burglary in the third degree (Penal Law §
140.20) and petit larceny (§ 155.25), defendant contends that the
conviction is not supported by legally sufficient evidence. We reject
that contention. Initially, we conclude that defendant failed to
preserve for our review his contention that the petit larceny and
burglary convictions are not supported by legally sufficient evidence
that property was stolen or that he intended to commit a crime,
respectively, because his motion for a trial order of dismissal was
not specifically directed at those issues (see People v Gray, 86 NY2d
10, 19). In any event, we conclude that the evidence is legally
sufficient to support the conviction with respect to all of the
charges (see generally People v Bleakley, 69 NY2d 490, 495). Based
upon all the evidence at trial, including the circumstantial evidence
that the church’s collection boxes had recently been forcibly opened
and were empty and that there was a single track of footprints in the
snow leading from defendant’s vehicle to the crime scene and then back
to defendant, a rational trier of fact could determine that the
elements of the crimes were proven beyond a reasonable doubt (see
generally People v Rossey, 89 NY2d 970, 971-972). Furthermore,
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 conclude
that the verdict is not against the weight of the evidence (see
                                 -2-                 1257
                                                KA 11-01992

generally Bleakley, 69 NY2d at 495).




Entered:   November 16, 2012           Frances E. Cafarell
                                       Clerk of the Court
