                            State of New York
                     Supreme Court, Appellate Division
                         Third Judicial Department
Decided and Entered: November 3, 2016                     106640
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                       MEMORANDUM AND ORDER

BRADLEY J. ROBTOY,
                    Appellant.
________________________________


Calendar Date:   September 13, 2016

Before:   McCarthy, J.P., Garry, Devine, Clark and Mulvey, JJ.

                               __________


     Mitch Kessler, Cohoes, for appellant.

      Andrew J. Wylie, District Attorney, Plattsburgh (Timothy
Blatchely of counsel), for respondent.

                               __________


McCarthy, J.P.

      Appeal from a judgment of the County Court of Clinton
County (McGill, J.), rendered September 3, 2013, upon a verdict
convicting defendant of the crimes of criminal possession of
stolen property in the fourth degree (two counts), criminal
possession of stolen property in the fifth degree (three counts)
and conspiracy in the fifth degree.

      After recovering copper wire reported to be stolen and
reported to have been sold to scrap yards by, among others,
defendant, authorities charged defendant with two counts of
criminal possession of stolen property in the fourth degree,
three counts of criminal possession of stolen property in the
fifth degree and one count of conspiracy in the fifth degree.
Following a jury trial, defendant was convicted on all counts and
                              -2-                106640

sentenced, as a second felony offender, to an aggregate prison
term of 2 to 4 years. Defendant appeals, and we affirm.

      The overwhelming evidence of defendant's guilt renders his
contention that the verdict was against the weight of the
evidence without merit. "A person is guilty of criminal
possession of stolen property in the fourth degree when he [or
she] knowingly possesses stolen property, with intent to benefit
himself[, herself] or a person other than an owner thereof or to
impede the recovery by an owner thereof, and when . . . [t]he
value of the property exceeds [$1,000]" (Penal Law § 165.45 [1]).
"A person is guilty of criminal possession of stolen property in
the fifth degree when he [or she] knowingly possesses stolen
property, with intent to benefit himself[, herself] or a person
other than an owner thereof or to impede the recovery by an owner
thereof" (Penal Law § 165.40). "A person is guilty of conspiracy
in the fifth degree when, with intent that conduct constituting
. . . a felony be performed, he [or she] agrees with one or more
persons to engage in or cause the performance of such conduct"
and at least one of the conspirators commits an overt act in
furtherance of the conspiracy (Penal Law § 105.05 [1]; see Penal
Law § 105.20; People v Canale, 268 AD2d 699, 699 [2000]).

      A variety of evidence presented by multiple witnesses
established defendant's commission of the aforementioned crimes.
Tire tracks leading away from the construction site at which
copper wire valued at approximately $18,000 to $20,000 was stolen
were similar to the tread on the tires of defendant's vehicle and
were similar to tire tracks in defendant's driveway. Defendant
was clearly identified – by security video, eyewitness
identification and photocopies of identification that he provided
– along with other men, as selling copper wire to scrap yards in
the aftermath of the theft, some of which was recovered. When
defendant was arrested, he had exactly the amount of cash on him
that matched a recent scrap yard sale and had two receipts on him
regarding such scrap yard sales. A codefendant engaged in
selling the recovered copper wire with defendant used a fake name
while selling such wire and, at least on one occasion, defendant
and the other men involved in the sales made a point of selling
copper wire in increments small enough so that they could receive
cash instead of checks. One scrap yard employee explained that
                              -3-                106640

defendant appeared to be generally concerned with hiding the
copper wire that he wished to sell, storing it under a blanket in
his vehicle.

      Based on the company name, size and types of reels of some
of the copper wire recovered by police that defendant had sold,
the wire was identified as that which had been stolen. Further,
authorities found copper wire in defendant's home, some of which
had tags that matched the tags on wire that had been stolen.
Further proof regarding the value of the property that defendant
stole established that defendant received more that $2,300 in
exchange for copper wire on April 17, 2016. On April 18, 2016
and at one scrap yard, defendant and the men that he was with
received more than $1,600 in exchange for copper wire.
Considering the evidence as a whole, the verdict was not against
the weight of the evidence (see People v Smith, 138 AD3d 1248,
1250 [2016], lv denied 27 NY3d 1139 [2016]; People v Helms, 119
AD3d 1153, 1155 [2014], lv denied 24 NY3d 1044 [2014]; People v
Royster, 107 AD3d 1298, 1300-1301 [2013], lv denied 22 NY3d 958
[2013]; People v Hardy, 57 AD3d 1100, 1102 [2008], lv denied 12
NY3d 784 [2009]; People v Swackhammer, 65 AD3d 713, 714 [2009];
People v Ormsby, 5 AD3d 868, 870-871 [2004]; People v Harris, 288
AD2d 610, 618 [2001], affd 99 NY2d 202 [2002]).

      As defendant concedes, his contention that the People
improperly elicited testimony regarding his invocation of his
right to remain silent as a part of their direct case is
unpreserved for our review (see People v McArthur, 101 AD3d 752,
752 [2012], lv denied 20 NY3d 1101 [2013]; see generally People v
Clarke, 110 AD3d 1341, 1345 [2013], lv denied 22 NY3d 1197
[2014]). Moreover, corrective action in the interest of justice
is unwarranted. Likewise, defendant failed to preserve his
contention that County Court erred in charging the jury that it
was to draw no adverse inference from defendant's decision not to
testify, and, in any event, such an error was harmless (see
People v Koberstein, 66 NY2d 989, 991 [1985]; People v Robinson,
1 AD3d 985, 986 [2003], lv denied 1 NY3d 633 [2004]).

      Finally, County Court did not err in responding to the
jury's request for a transcript of testimony from certain
witnesses regarding certain topics (see generally CPL 310.30).
                              -4-                  106640

The court read the note from the jury verbatim and announced its
intention to permit a readback of the requested testimony one
witness at a time, to which defense counsel did not object. In
explaining the procedure to the jury, the court stated, "once
you've heard the first readback . . . it might answer your
questions" and explained that the jury could return to
deliberations while the court reporter prepared additional
testimony for readback, to which defense counsel did not object.
After the readback of the relevant portions of one witness's
testimony, and presumably while the court reporter was preparing
additional testimony for readback, the jury informed the court
that it had reached a verdict. As defendant concedes, no mode of
proceedings error occurred (see People v Morris, 27 NY3d 1096,
1098 [2016]; People v Mack, 27 NY3d 534, 543 [2016]), and, thus,
defendant's failure to lodge any complaint to any of the steps
that the court took to respond to the request renders the issue
unpreserved for our review (see People v Sorrell, 108 AD3d 787,
793 [2013], lv denied 23 NY3d 1025 [2014]). Moreover,
defendant's current contention that the court should not have
allowed the jury to reach a verdict until the entire readback had
been completed is unavailing. By informing the court that it had
reached a verdict prior to the completion of the readback, the
jury unambiguously indicated that it was no longer in need of
previously requested information (see People v Douglass, 115 AD3d
1055, 1057 [2014]; People v Sorrell, 108 AD3d at 793 [2013];
People v Albanese, 45 AD3d 691, 692 [2007], lv denied 10 NY3d 761
[2008]).

     Garry, Devine, Clark and Mulvey, JJ., concur.


     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
