People v. Dudek

94 A.D.2d 934, 464 N.Y.S.2d 64, 1983 N.Y. App. Div. LEXIS 18387

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 25, 1983
• Status: Published

Opinion

— Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment of conviction of burglary in the third degree, following a jury trial. A security guard discovered defendant in the foyer leading to a basement warehouse and found several items piled near a broken door. The police found two candlestick holders in the defendant’s pockets-during a search incident to his arrest. Although a portion of the trial court’s charge on circumstantial evidence contained a clearly erroneous and rather bizarre rendition of the “footprints in the snow” hypothetical, the remainder of the charge, when considered against the background of the evidence and the manner in which the case was tried, was more than adequate to correct the error (see People v Crumble, 286 NY 24, 26; People v Mitchell, 72 AD2d 920). The People’s two exhibits in evidence were correctly identified and a proper chain of custody was established (see People v Julian, 41 NY2d 340; People v Flanigan, 174 NY 356; see, also, People v Delancey, 83 AD2d 616; 21 NY Jur, Evidence, § 358, p 490). Defendant’s contention regarding the trial court’s Sandoval ruling (People v Sandoval, 34 NY2d 371) was not preserved for review (People v Robinson, 36 NY2d 224, 228, mot to amd remittitur granted 37 NY2d 784; CPL 470.05, subd 2); but even if we were to review that issue in the interest of justice (CPL 470.15, subd 6, par [a]), we would find that there was no abuse of discretion by the trial court. (Appeal from judgment of Supreme Court, Erie County, Marshall, J. — burglary, third degree.) Present — Dillon, P. J., Hancock, Jr., Callahan, Denman and Green, JJ.