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

335
KA 12-01367
PRESENT: SMITH, J.P., DEJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KEITH E. CARMEL, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Joanne M. Winslow, J.), rendered July 11, 2012. The judgment
convicted defendant, upon a jury verdict, of burglary in the second
degree, criminal possession of a forged instrument in the second
degree and criminal possession of stolen property in the fourth
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, inter alia, burglary in the second degree (Penal Law
§ 140.25 [2]), defendant contends that the evidence is legally
insufficient to support the conviction of burglary because the People
failed to present any direct evidence that defendant was the person
who entered and stole property from the victims’ home. We reject that
contention. The People presented evidence establishing that the
victims’ home was unlawfully entered after they went to sleep at 10:00
p.m. on July 15, 2010 and that various items were taken from their
home. At approximately 12:50 a.m. on July 16, 2010, recordings from
surveillance cameras at a 24-hour supermarket located 1 ½ miles from
the victims’ residence showed defendant at the supermarket with a
bicycle and a backpack that were stolen from the residence. Moreover,
defendant purchased various items at the supermarket using a credit
card that was stolen from the residence. We conclude that
“[d]efendant’s recent and exclusive possession of the property that
constituted the fruits of the burglary, and the absence of credible
evidence that the crime was committed by someone else, justified the
inference that defendant committed the burglary” (People v Marshall,
198 AD2d 907, 907, lv denied 82 NY2d 898; see People v Walker, 125
AD3d 1507, 1507-1508, lv denied 25 NY3d 1209). Viewing the evidence
in light of the elements of the crimes as charged to the jury (see
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                                                         KA 12-01367

People v Danielson, 9 NY3d 342, 349), we likewise 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 he was denied
effective assistance of counsel. Defendant has failed to establish
the absence of any strategic or other legitimate explanation for
defense counsel’s alleged error in failing to object to identification
testimony (see generally People v Caban, 5 NY3d 143, 152), and we
conclude that defendant received meaningful representation (see
generally People v Baldi, 54 NY2d 137, 147).




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