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

183
KA 13-01707
PRESENT: PERADOTTO, J.P., CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                MEMORANDUM AND ORDER

GORDIE W. WALKER, JR., DEFENDANT-APPELLANT.


WILLIAMS, HEINL, MOODY & BUSCHMAN, P.C., AUBURN (RYAN JAMES MULDOON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

GORDIE W. WALKER, JR., DEFENDANT-APPELLANT PRO SE.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cayuga County Court (Thomas G.
Leone, J.), rendered August 1, 2013. The judgment convicted
defendant, upon a jury verdict, of burglary in the second 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: On appeal from a judgment convicting him upon a jury
verdict of burglary in the second degree (Penal Law § 140.25 [2]) and
criminal possession of stolen property in the fifth degree (§ 165.40),
defendant contends that the evidence is legally insufficient to
support his conviction. Defendant’s contention is unpreserved for our
review inasmuch as he failed to renew his motion for a trial order of
dismissal after presenting evidence (see People v Hines, 97 NY2d 56,
61, rearg denied 97 NY2d 678). In any event, that contention is
without merit (see generally People v Bleakley, 69 NY2d 490, 495).
The record establishes that defendant attended a party at the victim’s
apartment, that he was the last person to leave the party, and that he
was alone in the apartment in the hours before the victim discovered
that his property had been stolen. Further, the day after the party,
defendant sold the property stolen from the victim. We thus 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” and
knowingly possessed stolen property (People v Marshall, 198 AD2d 907,
907, lv denied 82 NY2d 898; see People v Jackson, 66 AD3d 1415, 1416;
People v Scurlock, 33 AD3d 366, 366, lv denied 7 NY3d 928). Viewing
the evidence in light of the elements of the crimes as charged to the
                                 -2-                           183
                                                         KA 13-01707

jury (see People v Danielson, 9 NY3d 342, 349), we likewise conclude
that the verdict is not against the weight of the evidence (see
Bleakley, 69 NY2d at 495). We note that “[r]esolution of issues of
credibility, as well as the weight to be accorded to the evidence
presented, are primarily questions to be determined by the jury”
(People v Witherspoon, 66 AD3d 1456, 1457, lv denied 13 NY3d 942
[internal quotation marks omitted]), and we see no reason to disturb
the jury’s resolution of those issues in this case.

     Contrary to the contention of defendant in his pro se
supplemental brief, we conclude that County Court properly granted the
People’s motion to amend the indictment to conform to the proof at
trial inasmuch as “[t]he minor temporal correction did not change the
theory of the prosecution or cause any prejudice to . . . defendant”
(People v Hankins, 265 AD2d 572, 572, lv denied 94 NY2d 880; see CPL
200.70 [1]; People v Lane, 47 AD3d 1125, 1127, lv denied 10 NY3d 866;
People v Grasso, 237 AD2d 741, 742, lv denied 89 NY2d 1035).




Entered:   February 13, 2015                    Frances E. Cafarell
                                                Clerk of the Court
