Opinion
558 KA 14-01950
05-01-2015
The PEOPLE of the State of New York, Respondent, v. Robert C. DIEHL, Defendant–Appellant.
Garufi Law P.C., Binghamton (Carmen M. Garufi of Counsel), for Defendant–Appellant. Leanne K. Moser, District Attorney, Syracuse, D.J. & J.A. Cirando, Esqs. (John A. Cirando of Counsel), for Respondent.
Garufi Law P.C., Binghamton (Carmen M. Garufi of Counsel), for Defendant–Appellant.
Leanne K. Moser, District Attorney, Syracuse, D.J. & J.A. Cirando, Esqs. (John A. Cirando of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, and DeJOSEPH, JJ.
Opinion
MEMORANDUM:Defendant appeals from a judgment convicting him following a nonjury trial of, inter alia, attempted grand larceny in the third degree (Penal Law §§ 110.00, 155.35 ). Contrary to defendant's contention, County Court did not abuse its discretion in allowing the People to reopen their proof to properly identify defendant (see CPL 260.30[7] ). Although defendant is correct that the People initially failed to ask their witnesses on direct examination to identify defendant, the identity of defendant was “ ‘simple to prove and not hotly contested’ ” (People v. Whipple, 97 N.Y.2d 1, 7, 734 N.Y.S.2d 549, 760 N.E.2d 337 ).
By failing to renew his motion for a trial order of dismissal after presenting evidence, defendant failed to preserve his challenge to the legal sufficiency of the evidence (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396 ; People v. Brown, 120 A.D.3d 1545, 1546, 992 N.Y.S.2d 591, lv. denied 24 N.Y.3d 1082, 1 N.Y.S.3d 9, 25 N.E.3d 346 ). Viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). The court “was entitled to reject defendant's version of the events ‘and, upon our review of the record, we cannot say that the court failed to give the evidence the weight that it should be accorded’ ” (People v. McCoy, 100 A.D.3d 1422, 1422, 953 N.Y.S.2d 788 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.