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

24
KA 12-01286
PRESENT: SMITH, J.P., FAHEY, VALENTINO, WHALEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

TRACY Q. WASHINGTON, DEFENDANT-APPELLANT.


FRANK M. BOGULSKI, BUFFALO, FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (Thomas M. Van
Strydonck, J.), rendered November 17, 2011. The judgment convicted
defendant, upon a nonjury verdict, of burglary in the third degree and
petit larceny.

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

     Memorandum: On appeal from a judgment convicting him, upon a
nonjury verdict, of burglary in the third degree (Penal Law § 140.20)
and petit larceny (§ 155.25), defendant contends that the evidence is
legally insufficient to establish with respect to both crimes that the
merchandise he returned to a Lord & Taylor store was stolen or that he
knew that it was stolen. We reject that contention. Viewed in the
light most favorable to the prosecution (see People v Contes, 60 NY2d
620, 621), the evidence is legally sufficient to establish that
defendant knowingly returned unpurchased merchandise in exchange for
store credit, which he then used to purchase an item of clothing (see
§§ 140.20, 155.25; People v Weaver, 89 AD3d 1477, 1478; see generally
People v Bleakley, 69 NY2d 490, 495). Additionally, viewing the
evidence in light of the elements of the crimes in this nonjury trial
(see People v Danielson, 9 NY3d 342, 349), we conclude that the
verdict is not against the weight of the evidence (see generally
Bleakley, 69 NY2d at 495).




Entered:    February 1, 2013                       Frances E. Cafarell
                                                   Clerk of the Court
