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

863
KA 10-01429
PRESENT: WHALEN, P.J., SMITH, LINDLEY, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KEITH BRYANT, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


CHARLES T. NOCE, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON 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 (Robert B.
Wiggins, A.J.), rendered May 3, 2010. The judgment convicted
defendant, upon a jury verdict, of burglary in the third degree, petit
larceny and criminal mischief in the third degree.

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

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him following a jury trial of, inter alia, burglary in the
third degree (Penal Law § 140.20). Contrary to defendant’s
contention, the verdict is not against the weight of the evidence. An
eyewitness testified that he observed a man fitting defendant’s
general description leave a children’s clothing store after 9:00 p.m.
through the broken front door, carrying several coats. Shortly
thereafter, the police received a tip from an identified informant
that a man was selling children’s coats at a “drug house”
approximately one block from the store and, when the police arrived at
that location, they found defendant in a room with several children’s
coats with tags from the store. The store owner testified that she
asked the police if she could speak to the suspect seated in the
patrol car and, when she did so, the person apologized to her. Thus,
viewing the evidence in light of the elements of the crime as charged
to the jury (see People v Danielson, 9 NY3d 342, 349), we conclude
that a different verdict would have been unreasonable and thus that
the verdict is not against the weight of the evidence (see generally
People v Bleakley, 69 NY2d 490, 495).

     Contrary to defendant’s further contention, County Court properly
refused to suppress the statement defendant made to the owner of the
store based on the People’s failure to provide a CPL 710.30 notice
                                 -2-                           863
                                                         KA 10-01429

with respect to that statement. The store owner was not acting as an
agent of the police and therefore no notice pursuant to CPL 710.30 was
required (see People v Jones, 292 AD2d 792, 792, lv denied 98 NY2d
652; see generally People v Ray, 65 NY2d 282, 286). The court also
properly denied defendant’s motion to set aside the verdict pursuant
to CPL 330.30 on the ground that the court erred in admitting that
statement. “It is well settled that ‘[t]he basis for vacating a jury
verdict prior to sentencing is strictly circumscribed by CPL 330.30 to
allow vacatur only if reversal would have been mandated on appeal as a
matter of law’ ” (People v Shelton, 111 AD3d 1334, 1334, lv denied 23
NY3d 1025), and that is not the case here.

     Although the People correctly concede that the police were
required to retain the stolen coats until they had given notice to
defendant that the coats were being returned to the store owner and
had afforded him an opportunity to examine, test or photograph them
(see Penal Law § 450.10 [1], [2]), we reject defendant’s contention
that the court abused its discretion in refusing to dismiss the
indictment or preclude any evidence regarding the coats. It is well
established that the determination of a sanction for a violation of
section 450.10 is left to the sound discretion of the court (see
People v Riley, 19 NY3d 944, 946, adhered to on rearg 20 NY3d 980;
People v Kelly, 62 NY2d 516, 520-521), and that those sanctions are
not to be used “if less severe measures can rectify the harm done” by
the failure of the police to retain the evidence (Kelly, 62 NY2d at
521; see People v Jenkins, 98 NY2d 280, 284). Inasmuch as the court
determined that there was no bad faith on the part of the police in
returning the coats to the store owner and defense counsel argued that
there was no forensic evidence connecting defendant to the crime, the
court’s determination to instruct the jury to infer that there was no
fingerprint or DNA evidence on the coats or the hangers was
appropriate (see People v Perkins, 56 AD3d 944, 945-946, lv denied 12
NY3d 786; see generally People v McCall, 289 AD2d 1074, 1074, lv
denied 97 NY2d 757). Defendant’s contention that there may have been
evidence that exonerated him is entirely speculative. The store owner
testified that she did not observe any blood on the coats, and an
evidence technician testified that fingerprints could not be obtained
from fabric and that it was unlikely that a clear print could be
obtained from the hangers based upon their shape and the number of
people who would have handled them.

     Even assuming, arguendo, that the court erred in admitting in
evidence a security video of poor quality that depicted a man walking
near the store, we conclude that any error is harmless. The evidence
of defendant’s guilt is overwhelming, and there is no reasonable
probability that defendant would have been acquitted if that evidence
was not admitted (see generally People v Crimmins, 36 NY2d 230, 241-
242). Defendant failed to preserve for our review his contention that
the court erred in permitting a police investigator to testify with
respect to the contents of the video (see CPL 470.05 [2]), and we
decline to exercise our power to review the contention as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]).

     Finally, as defendant correctly concedes, reversal of the
                                 -3-                           863
                                                         KA 10-01429

judgment in appeal No. 2, convicting him upon his plea of guilty of
grand larceny in the fourth degree (Penal Law § 155.30 [1]), is
warranted only in the event that the judgment in appeal No. 1 is
reversed (see People v Monroe, 39 AD3d 1276, 1277, lv denied 9 NY3d
867; see generally People v Pichardo, 1 NY3d 126, 129), and here we
are affirming the judgment in appeal No. 1.




Entered:   November 10, 2016                   Frances E. Cafarell
                                               Clerk of the Court
