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

669
KA 11-02491
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DUSTIN L. BUTCHINO, DEFENDANT-APPELLANT.


THEODORE W. STENUF, MINOA, FOR DEFENDANT-APPELLANT.

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (MATTHEW J. BELL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oswego County Court (Walter W.
Hafner, Jr., J.), rendered August 31, 2011. The judgment convicted
defendant, upon a jury verdict, of grand larceny in the third degree.

     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 grand larceny in the third degree (Penal Law § 155.35 [1]),
defendant contends that the evidence is legally insufficient to
support the conviction. Defendant failed to preserve that contention
for our review inasmuch as he failed to renew his motion for a trial
order of dismissal after presenting evidence (see People v Hines, 97
NY2d 56, 61, rearg denied 97 NY2d 678). Further, viewing the evidence
in light of the elements of that crime 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 generally People v
Bleakley, 69 NY2d 490, 495).

     We reject defendant’s further contention that defense counsel was
ineffective on the ground that he failed to make a timely request for
a missing witness charge with respect to defendant’s former
girlfriend. Defense counsel in fact made a request for such a charge
in a timely manner, i.e., “ ‘as soon as practicable’ ” (People v Carr,
14 NY3d 808, 809), and we note that the charge was not warranted in
any event. The girlfriend refused to testify and she “ ‘was not under
the control of the People such that she could be expected to give
testimony favorable to the prosecution’ ” (People v Hernandez, 256
AD2d 18, 19, lv denied 93 NY2d 874). Contrary to defendant’s further
contention, the fact that the jury acquitted him of burglary in the
second degree but found him guilty of grand larceny in the third
degree does not render the verdict repugnant (see People v Jock, 111
AD2d 941, 942, lv denied 66 NY2d 615; People v McGee, 110 AD2d 719,
                                 -2-                           669
                                                         KA 11-02491

719-720), and thus it cannot be said that defense counsel was
ineffective in failing to preserve such a contention for our review
(see generally People v Stultz, 2 NY3d 277, 287, rearg denied 3 NY3d
702).




Entered:   June 7, 2013                        Frances E. Cafarell
                                               Clerk of the Court
