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

336
KA 14-00307
PRESENT: SMITH, J.P., DEJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DONALD CLARK, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

DONALD CLARK, DEFENDANT-APPELLANT PRO SE.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), rendered January 6, 2014. The judgment convicted
defendant, upon a jury verdict, of burglary in the third degree (two
counts) and criminal possession of stolen property in the fourth
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice and on the law by reducing the conviction of criminal
possession of stolen property in the fourth degree to criminal
possession of stolen property in the fifth degree and by vacating the
sentence imposed on count three of the indictment and imposing a
definite sentence of one year and as modified the judgment is
affirmed.

     Memorandum: Defendant appeals from a judgment entered upon a
jury verdict convicting him of two counts of burglary in the third
degree (Penal Law § 140.20) and one count of criminal possession of
stolen property in the fourth degree (§ 165.45 [5]). Defendant failed
to preserve for our review his contention that his conviction of one
of the counts charging burglary in the third degree and the count
charging criminal possession of stolen property in the fourth degree
is not supported by legally sufficient evidence (see People v Gray, 86
NY2d 10, 19). We nevertheless exercise our power to review that
contention as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]; People v Morgan, 111 AD3d 1254, 1256). We reject
defendant’s contention with respect to the burglary count. Defendant
was identified by two witnesses as one of two men who were seen
wheeling two bicycles down a driveway and placing them in the bed of a
pickup truck before walking down the street, looking into driveways as
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                                                         KA 14-00307

they went. The two witnesses observed one of the men, whom they
identified as defendant during a showup procedure based upon his
stature and his clothing, return to the vicinity of the truck carrying
several items. As a police car approached, in response to the 911
call made by one of the witnesses, the man placed the three items next
to a tree. Defendant was apprehended in proximity to those items, and
the items were identified by the owners as having been removed from
their garage. We conclude that, viewing the evidence in the light
most favorable to the People, “there is sufficient evidence to support
the jury’s inference” that he unlawfully entered a building with the
intent to commit a crime therein (People v Gordon, 23 NY3d 643, 649;
see generally People v Bleakley, 69 NY2d 490, 495).

     We reject defendant’s further contention that the evidence with
respect to his knowing possession of the stolen pickup truck is
legally insufficient to support the conviction of criminal possession
of stolen property in the fourth degree. Viewing the evidence in the
light most favorable to the People, i.e., that defendant was observed
loading stolen property into a truck that had been stolen within the
prior three hours, there is a valid line of reasoning and permissible
inferences to lead a rational person to conclude that defendant knew
that the truck was stolen (see generally Gordon, 23 NY3d at 649;
Bleakley, 69 NY2d at 495). We agree with defendant, however, that the
evidence is legally insufficient to support the conviction of that
crime because as the People correctly concede, there was no evidence
regarding the value of the truck, a requisite element of that offense
(see generally Morgan, 111 AD3d at 1256-1257). We further conclude,
however, that the evidence is legally sufficient to support the lesser
included offense of criminal possession of stolen property in the
fifth degree (Penal Law § 165.40), and we therefore modify the
judgment accordingly (see CPL 470.15 [2] [a]; People v Pallagi [appeal
No. 1], 91 AD3d 1266, 1270). Because defendant has served the maximum
one-year sentence for that offense (see Penal Law §§ 70.15 [1];
70.35), there is no need to remit the matter to Supreme Court for
resentencing (see People v McKinney, 91 AD3d 1300, 1300). In the
interest of judicial economy, we further modify the judgment by
vacating the sentence imposed on count three and by imposing the
maximum sentence allowed for class A misdemeanor, i.e., a definite
sentence of one year (see id.). Contrary to defendant’s contention,
viewing the elements of the crime of burglary in the third degree as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
conclude that the verdict with respect to those counts is not against
the weight of the evidence (see generally Bleakley, 69 NY2d at 495).

     Defendant failed to preserve for our review his contention that
he was denied a fair trial by prosecutorial misconduct during
summation (see People v Smith, 32 AD3d 1291, 1292, lv denied 8 NY3d
849) and, in any event, that contention is without merit. Although
the People correctly concede that certain remarks that denigrated the
defense were improper, and we reiterate that we do not condone that
type of conduct (see People v Gibson, 134 AD3d 1512, 1513), we
nevertheless conclude that neither those remarks, nor the other
alleged instances of misconduct, were so egregious as to deny
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                                                         KA 14-00307

defendant a fair trial (see People v McAvoy, 70 AD3d 1467, 1468, lv
denied 14 NY3d 890; cf. People v Jones, 134 AD3d 1588, 1589).

     We reject defendant’s contention in his main and pro se
supplemental briefs that he was denied effective assistance of
counsel. We conclude that defendant failed to sustain his burden of
establishing “that his attorney ‘failed to provide meaningful
representation’ that compromised ‘his right to a fair trial’ ” (People
v Pavone, 26 NY3d 629, 647). Indeed, viewing defense counsel’s
performance in its totality, as we must (see People v Baldi, 54 NY2d
137, 147), we conclude that defendant received meaningful
representation (see generally People v Wragg, 26 NY3d 403, 409). To
the extent that defendant raises contentions regarding alleged
instances constituting ineffective assistance of counsel in his pro se
supplemental brief that are outside the record on appeal, those
contentions must be raised by way of a motion pursuant to CPL 440.10
(see People v Cooper, 134 AD3d 1583, 1586). We have reviewed the
remaining contentions contained in defendant’s pro se supplemental
brief and conclude that none requires reversal or further modification
of the judgment.

     We reject defendant’s further contention in his main brief that
the court erred in denying his motion pursuant to CPL 330.30 (3) to
set aside the verdict based upon newly discovered evidence, i.e., a
posttrial statement by the Erie County District Attorney that a person
who also was apprehended on the night of these crimes and identified
by the witnesses as one of the men seen with the bicycles was
exonerated. It is undisputed that the prosecutor, an assistant
district attorney, stated during his summation that the person was
“probably guilty” but explained that there was not sufficient evidence
to charge him with these crimes. Even assuming, arguendo, that the
District Attorney’s remark was admissible in a new trial (see
generally People v Backus, 129 AD3d 1621, 1623), we conclude that
defendant failed to establish that the evidence would probably change
the result if a new trial was granted or that the evidence was
material, not cumulative and did not merely impeach or contradict the
record evidence (see id.; cf. People v Madison, 106 AD3d 1490, 1492-
1494). Finally, the concurrent terms of imprisonment imposed on the
burglary counts are not unduly harsh or severe.




Entered:   April 29, 2016                       Frances E. Cafarell
                                                Clerk of the Court
