People v Bell (2006 NY Slip Op 51177(U))

People v Bell (David)

2006 NY Slip Op 51177(U) [12 Misc 3d 133(A)]

Decided on June 6, 2006

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

The People of the State of New York, Respondent,

against

David Bell, Appellant.

Appeal from a judgment of the Justice Court of the Town of Ramapo, Rockland County (Arnold Etelson, J.), rendered November 4, 2004. The judgment, after a nonjury trial, convicted defendant of petit larceny.

Defendant's contention, that the evidence adduced at trial was legally insufficient to prove his guilt of petit larceny beyond a reasonable doubt, is not preserved for appellate review because it was not advanced with specificity on his motion for a trial order of dismissal (see CPL 470.05 [2]; People v Gray, 86 NY2d 10 [1995]; People v Eugene, 27 AD3d 480 [2006]). In any event, viewing the evidence in a light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), we find it was legally sufficient to establish defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see CPL 470.15 [5]). Resolution of issues of credibility, as well as the weight to be accorded the evidence presented, are primarily questions to be determined by the trier of fact, which had the opportunity to see and hear the witnesses (see People v Gaimari, 176 NY 84 [1903]). The determination of the trier of fact should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see People v Garafolo, 44 AD2d 86 [1974]).

To the extent the witness' narration of the incident depicted on the videotape, including his conclusion that it showed defendant placing $200 in cash in his back pocket and not in the cash register, may have been improper (cf. People v Lofton, 226 AD2d 1082 [1996]), "the court is presumed to have considered only the legally competent evidence adduced [at trial] and to have excluded extraneous matter from [its] deliberations and verdict (People v Harris, 133 AD2d [*2]649, 650-651)" (People v Gibson, 210 AD2d 8, 9 [1994]; see also People v Moreno, 70 NY2d 403 [1987]; People v Riley, 271 AD2d 288 [2000]; People v Cheswick, 166 AD2d 88 [1991]).