Opinion
2013-05-8
The PEOPLE, etc., respondent, v. Bennie GIBSON, appellant.
Bennie Gibson, Coxsackie, N.Y., appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, and Tina Grillo of counsel), for respondent.
Bennie Gibson, Coxsackie, N.Y., appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, and Tina Grillo of counsel), for respondent.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and L. PRISCILLA HALL, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered March 10, 2010, convicting him of criminal mischief in the third degree, petit larceny, and possession of burglar's tools, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant failed to preserve for appellate review ( seeCPL 470.05[2]; cf. People v. Powell, 101 A.D.3d 756, 757, 955 N.Y.S.2d 608) his contention that the People failed to present legally sufficient evidence establishing that the cost of replacing underwater copper cable belonging to the Long Island Rail Road that he allegedly cut was in excess of $250 ( seePenal Law § 145.05[2] ). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to support the defendant's conviction of criminal mischief in the third degree beyond a reasonable doubt ( see People v. Towsley, 85 A.D.3d 1549, 1550, 924 N.Y.S.2d 708;People v. Butler, 70 A.D.3d 1509, 1509, 894 N.Y.S.2d 307;People v. Dixon, 184 A.D.2d 725, 726, 587 N.Y.S.2d 185;People v. Woodard, 148 A.D.2d 997, 997–998, 539 N.Y.S.2d 229). Moreover, upon our independent review pursuant to CPL 470.15[5], we are satisfied that the verdict of guilt was not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).
The defendant's contention that certain testimony presented at trial was inconsistent with testimony presented to the grand jury and that, therefore, the People changed their theory of the case is unpreserved for appellate review ( seeCPL 470.05[2] ) and, in any event, is without merit.
The defendant's contention that the People failed to establish the chain of custody for certain physical evidence recovered from the scene of the charged offenses is unpreserved for appellate review ( see People v. Mateo, 282 A.D.2d 398, 398, 723 N.Y.S.2d 663;People v. Moore, 248 A.D.2d 405, 405, 669 N.Y.S.2d 638). In any event, the People established a sufficient chain of custody for the items offered into evidence ( see People v. Gibson, 28 A.D.3d 576, 576, 816 N.Y.S.2d 83).
Contrary to the defendant's contention, the Supreme Court providently exercised its discretion, and did not deprive him of the right to confront adverse witnesses against him, when it denied his request to recall a prosecution witness for further cross-examination ( cf. People v. Legere, 81 A.D.3d 746, 750, 916 N.Y.S.2d 187;People v. Francisco, 44 A.D.3d 870, 870, 843 N.Y.S.2d 439).