         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1592
KA 09-00429
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JASON GANO, DEFENDANT-APPELLANT.


DAVISON LAW OFFICE, PLLC, CANANDAIGUA (MARK C. DAVISON OF COUNSEL),
FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (LESLIE E. SWIFT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Joseph D. Valentino, J.), rendered January 16, 2009. The judgment
convicted defendant, upon a jury verdict, of scheme to defraud in the
first degree, body stealing (17 counts), opening graves (17 counts)
and unlawful dissection of the body of a human being (17 counts).

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, 17 counts each of body stealing
(Public Health Law § 4216), opening graves (§ 4218), and unlawful
dissection of the body of a human being (§ 4210-a). Defendant
contends that the evidence is legally insufficient to support the
conviction of body stealing and opening graves because the People
failed to prove that body parts were removed from bodies that were
“buried” (§ 4216) or “awaiting burial” (id.; § 4218), or that he acted
with one of the statutory purposes set forth in Public Health Law §§
4216 and 4218. Defendant failed to raise those contentions in his
motion for a trial order of dismissal and thus failed to preserve them
for our review (see People v Gray, 86 NY2d 10, 19). In any event,
defendant’s contentions lack merit. We further reject defendant’s
contention that the evidence is legally insufficient to support the
conviction of body stealing, opening graves, and unlawful dissection
under an accomplice theory. Viewing the evidence in the light most
favorable to the prosecution (see People v Contes, 60 NY2d 620, 621),
we conclude that a rational trier of fact could have found defendant
guilty as an accomplice beyond a reasonable doubt (see generally
People v Bleakley, 69 NY2d 490, 495).

     We further conclude that Supreme Court did not err in refusing to
suppress statements made by defendant to an investigator from Kings
                                 -2-                          1592
                                                         KA 09-00429

County pursuant to a proffer agreement. The agreement expressly
provides that the Kings County District Attorney’s Office would “not
use any statements made by [defendant] during the proffer in its case-
in-chief in any criminal proceeding,” but there is no provision
therein that the statements made by defendant would not be used to
prosecute him in another jurisdiction. Morever, the testimony adduced
at the Huntley hearing established that Kings County personnel did not
consult with Monroe County personnel before presenting the proffer
agreement to defendant, and that no one from the Monroe County
District Attorney’s Office, the Rochester Police Department, or any
member of Rochester law enforcement was present during defendant’s
interview with the King’s County District Attorney’s Office. Thus,
the record belies defendant’s contention “that Monroe County and Kings
County were acting in concert such that the former could be bound by
the promises of the latter” (People v Batjer, 77 AD3d 1279, 1280).

     Contrary to the further contention of defendant, we conclude that
the court did not err in admitting in evidence records of various
tissue processing companies, inasmuch as the People established that
the records fall within the business records exception to the hearsay
rule (see CPLR 4518 [a]; CPL 60.10). Although much of the information
contained in the records of BioMedical Tissue Services (BTS) was
false, the testimony of two BTS employees established that the donor
names, tissue recovery location, and recovery dates were accurately
recorded on index cards; that such information was recorded in the
regular course of BTS’ business; and that the records were made at or
about the time that the tissue recoveries took place (see CPLR 4518
[a]; People v Kennedy, 68 NY2d 569, 579-580; cf. Batjer, 77 AD3d at
1280-1281). The information from the index cards was then copied onto
BTS recovery logs in the regular course of the business of BTS at or
about the time that its New Jersey office received the tissue from
Rochester, New York (see People v Morrow, 204 AD2d 356, 357). In any
event, we note that the record contains circumstantial evidence
establishing the identity of the decedents.

     The sentence is not unduly harsh or severe. Finally, we have
reviewed defendant’s remaining contentions and conclude that they are
lacking in merit.




Entered:   February 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
