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

791
KA 10-00462
PRESENT: SCUDDER, P.J., SMITH, CARNI, SCONIERS, AND GREEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DALE NEASON, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT B. HALLBORG,
JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (VANESSA S. GUITE OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered February 9, 2010. The judgment
convicted defendant, upon a jury verdict, of burglary in the third
degree and criminal possession of stolen property in the fifth degree.

     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 burglary in the third degree (Penal Law §
140.20) and criminal possession of stolen property in the fifth degree
(§ 165.40). Contrary to defendant’s contention, viewing the evidence
in light of the elements of the crimes as charged to the jury (see
People v Danielson, 9 NY3d 342, 349), we conclude that the verdict is
not against the weight of the evidence (see generally People v
Bleakley, 69 NY2d 490, 495). Even assuming, arguendo, that a
different verdict would not have been unreasonable based on the
credible evidence presented at trial, we nevertheless conclude that,
upon “ ‘weigh[ing] the relative probative force of conflicting
testimony and the relative strength of conflicting inferences that may
be drawn from the testimony’ ” (id.), the jury did not fail to give
the evidence the weight that it should be accorded (see People v
Williams, 295 AD2d 915; see generally Bleakley, 69 NY2d at 495).

     Defendant failed to preserve for our review his further
contention that this Court should “presume” that he previously had
paid a DNA databank fee in connection with a prior felony conviction
and that, based on that presumption, Supreme Court erred in imposing
such a fee in this case (see People v Ramos, 60 AD3d 1317, lv denied
12 NY3d 928; People v Pierre, 41 AD3d 1267). In any event, we reject
that contention. The acts underlying “that prior felony conviction
predated the enactment of the legislation establishing such fee (see
                                   -2-                           791
                                                           KA 10-00462

Penal Law   § 60.35, as amended by L 2003, ch 62, part F, § 1)” (People
v Nelson,   77 AD3d 973, 973, lv denied 15 NY3d 954), and there
otherwise   is no basis in the record for this Court to “presume” that
defendant   previously paid such a fee.




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