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

797
KA 11-02369
PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

EDDIE R. PALMER, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (MARY P. DAVISON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered June 14, 2011. The judgment
convicted defendant, upon a nonjury verdict, of criminal possession of
stolen property in the fourth degree and unauthorized use of a vehicle
in the second degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
after a nonjury trial of criminal possession of stolen property in the
fourth degree (Penal Law § 165.45 [1]) and unauthorized use of a
vehicle in the second degree (§ 165.06). Defendant was convicted of
possessing and operating a motorized wheelchair that was taken from a
patient in a hospital.

     We reject defendant’s contention that the conviction is not
supported by legally sufficient evidence (see generally People v
Bleakley, 69 NY2d 490, 495; People v Pichardo, 34 AD3d 1223, 1224, lv
denied 8 NY3d 926). At trial, a hospital security officer testified
that, at approximately 3:30 a.m., she was watching security cameras
and saw defendant driving a motorized wheelchair away from the
hospital. The security officer further testified that she saw
defendant operating the wheelchair at a high rate of speed on hospital
grounds, rummaging through a hospital-issued patient belongings bag,
putting on an article of clothing that he had removed from the bag,
discarding some of the bag’s contents into nearby bushes, and driving
the wheelchair away from the hospital, where he was stopped by
security personnel. Another security officer testified that, after
defendant was stopped, he stated that he was visiting a friend, who
was not the victim, and that he was taking the motorized wheelchair
off the hospital grounds to charge the battery. A hospital employee
                                 -2-                           797
                                                         KA 11-02369

and the victim’s wife testified that the wheelchair belonged to the
victim, who was deceased at the time of trial.

     With respect to the conviction of criminal possession of stolen
property in the fourth degree, we conclude that the evidence is
legally sufficient to establish that defendant knowingly possessed
stolen property with “intent to benefit himself or a person other than
an owner thereof or to impede the recovery by an owner thereof” (Penal
Law § 165.45; see § 165.55 [1]). A defendant’s “ ‘knowledge that
property is stolen may be proven circumstantially, and the unexplained
or falsely explained recent exclusive possession of the fruits of a
crime allows a [trier of fact] to draw a permissible inference that
defendant knew the property was stolen’ ” (People v Waterford, 124
AD3d 1246, 1246-1247, lv denied 26 NY3d 972). We reject defendant’s
contention that the evidence regarding the value of the wheelchair is
legally insufficient to establish that its value exceeded $1,000, an
element of criminal possession of stolen property in the fourth degree
(§ 160.45 [1]). The testimony of a retailer regarding the value of
the wheelchair is “ ‘a reasonable basis for inferring, rather than
speculating, that the value of the [wheelchair] exceeded the statutory
threshold’ ” (People v Szyszkowski, 89 AD3d 1501, 1502).

     With respect to the conviction of unauthorized use of a vehicle
in the second degree, we conclude that the circumstantial evidence
adduced at trial is sufficient to establish that defendant knew that
he did not have the consent of the owner to operate the wheelchair
(see Penal Law §§ 165.05 [1]; 165.06). Also, viewing the evidence in
light of the elements of the crimes in this nonjury trial (see People
v Danielson, 9 NY3d 342, 349), we reject defendant’s contention that
the verdict is against the weight of the evidence (see generally
Bleakley, 69 NY2d at 495).

     Contrary to defendant’s further contention, the People did not
commit a Brady violation by failing to disclose additional security
footage. That security footage did not constitute Brady material
inasmuch as it was in the exclusive possession of the hospital and was
never in the People’s possession or control (see People v Walloe, 88
AD3d 544, 544, lv denied 18 NY3d 963; People v Thomas, 38 AD3d 1134,
1136-1137, lv denied 9 NY3d 852; People v Terry, 19 AD3d 1039, 1039-
1040, lv denied 5 NY3d 833).

     Finally, by failing to object to his appearance in prison garb
during the nonjury trial, “defendant failed to preserve for our review
his contention that he was thereby denied a fair trial” (People v
McNitt, 96 AD3d 1641, 1641, lv denied 19 NY3d 998), and we decline to
exercise our power to review that contention as a matter of discretion
in the interest of justice (see CPL 470.15 [6] [a]).




Entered:   September 30, 2016                   Frances E. Cafarell
                                                Clerk of the Court
