People v. Clark

• Decision Date: 23 December 2011
• Parties: The PEOPLE of the State of New York, Respondent, v. Antonio CLARK, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09476
90 A.D.3d 1576
935 N.Y.S.2d 429

The PEOPLE of the State of New York, Respondent,
v.
Antonio CLARK, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Dec. 23, 2011.

[935 N.Y.S.2d 429]

David J. Pajak, Alden, for Defendant–Appellant.

Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., CENTRA, GREEN, GORSKI, AND MARTOCHE, JJ.

MEMORANDUM:

[90 A.D.3d 1576] Defendant appeals from a judgment convicting him after a jury trial of, inter alia, two counts of conspiracy in the fourth degree (Penal Law § 105.10[1] ) and five counts of burglary in the first degree (§ 140.30[2]-[4] ). Defendant contends that the conviction of the two counts of conspiracy in the fourth degree is not supported by legally sufficient evidence because the People failed to establish that he was present when [90 A.D.3d 1577] the conspiracy occurred. We reject that contention ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Defendant's presence when the agreement was

[935 N.Y.S.2d 430]

reached “could be readily inferred from the evidence” ( People v. Serra, 293 A.D.2d 338, 740 N.Y.S.2d 200, lv. denied 98 N.Y.2d 681, 746 N.Y.S.2d 471, 774 N.E.2d 236; see People v. Smoke, 43 A.D.3d 1332, 843 N.Y.S.2d 875, lv. denied 9 N.Y.3d 1039, 852 N.Y.S.2d 24, 881 N.E.2d 1211). Defendant further contends that, by giving a circumstantial evidence charge, County Court improperly permitted the jury to infer that he participated in the conspiracy based merely on his alleged participation in the underlying crimes. Defendant failed to preserve that contention for our review inasmuch as he did not object to the circumstantial evidence charge on that specific ground ( see People v. Vassar, 30 A.D.3d 1051, 816 N.Y.S.2d 260, lv. denied 7 N.Y.3d 796, 821 N.Y.S.2d 826, 854 N.E.2d 1290). In any event, given that there was no direct proof of defendant's presence when the agreement was reached, we conclude that the circumstantial evidence charge was proper ( see generally People v. Daddona, 81 N.Y.2d 990, 992, 599 N.Y.S.2d 530, 615 N.E.2d 1014). Further, viewing the evidence in light of the elements of the crimes as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we reject defendant's further contention that the verdict is against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495, ...