         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
127
KA 09-02337
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                MEMORANDUM AND ORDER

DAVID A. BROWN, DEFENDANT-APPELLANT.


JOHN E. TYO, SHORTSVILLE, FOR DEFENDANT-APPELLANT.

DAVID A. BROWN, DEFENDANT-APPELLANT PRO SE.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA, FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (William F.
Kocher, J.), rendered July 8, 2009. The judgment convicted defendant,
upon a jury verdict, of burglary in the third degree and criminal
mischief in the fourth degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
after a jury trial of burglary in the third degree (Penal Law §
140.20) and criminal mischief in the fourth degree (§ 145.00 [1]) in
connection with the burglary of a car dealership. 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 result would not have been unreasonable based upon
defendant’s testimony that he happened upon a burglary in progress and
cut his finger when he placed computer equipment that had been left
outside the building on the desk that was near the broken window, we
conclude that the jury’s credibility determination is entitled to
great weight and it will not be disturbed here (see id.). We reject
defendant’s contention that County Court erred in refusing to charge
the jury that the case against him was based entirely on
circumstantial evidence inasmuch as the DNA evidence and defendant’s
testimony constituted direct evidence (see People v Whitfield, 72 AD3d
1610, lv denied 15 NY3d 811; see generally People v Guidice, 83 NY2d
630, 636).

     Defendant further contends that he was penalized for exercising
his right to a trial because he was sentenced as a second felony
offender to an aggregate term of imprisonment of 3¼ to 6½ years rather
                                 -2-                           127
                                                         KA 09-02337

than a term of 2½ to 5 years, as offered prior to trial. We reject
that contention. “ ‘Given that the quid pro quo of the bargaining
process will almost necessarily involve offers to moderate sentences
that ordinarily would be greater . . ., it is . . . to be anticipated
that sentences handed out after trial may be more severe than those
proposed in connection with a plea’ ” (People v Smith, 21 AD3d 1277,
1278, lv denied 7 NY3d 763, quoting People v Pena, 50 NY2d 400, 412,
rearg denied 51 NY2d 770, cert denied 449 US 1087). Indeed, we note
that defendant was eligible to be sentenced as a persistent felony
offender (see Penal Law § 70.10 [1] [a]), but that the court denied
the People’s request that he be sentenced as such.

     Contrary to the contention of defendant in his pro se
supplemental brief, the conviction is supported by legally sufficient
evidence (see generally Bleakley, 69 NY2d at 495). The DNA contained
in blood samples retrieved from the desk on which the stolen computer
monitor was located, as well as from the cord of a window blind,
matched defendant’s DNA and, during his testimony at trial, defendant
admitted that he was at the location. We reject the further
contention of defendant in his pro se supplemental brief that the
court erred in denying his motion seeking a change of venue or the
appointment of a special prosecutor based upon an alleged conflict of
interest of the District Attorney, who was a defendant in a civil
action commenced by defendant. The court properly determined that a
prosecutor should be removed “only to protect a defendant from ‘actual
prejudice arising from a demonstrated conflict of interest or a
substantial risk of an abuse of confidence’ ” (People v Williams, 37
AD3d 626, 627, lv denied 11 NY3d 836, quoting Matter of Schumer v
Holtzman, 60 NY2d 46, 55), and defendant failed to “demonstrate
‘actual prejudice or so substantial a risk thereof as could not be
ignored’ ” (id., quoting Schumer, 60 NY2d at 55). We have reviewed
the remaining contentions of defendant in his pro se supplemental
brief and conclude that they are without merit.




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