People v. Quaresimo

286 A.D.2d 876, 730 N.Y.S.2d 891, 2001 N.Y. App. Div. LEXIS 9113

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 28, 2001
• Status: Published

Opinion

—Judgment unanimously affirmed. Memorandum: The verdict finding defendant guilty of forgery in the second degree (Penal Law § 170.10 [1]), criminal possession of stolen property in the fourth degree (Penal Law § 165.45 [2]) and petit larceny (Penal Law § 155.25) is not contrary to the weight of the evidence, and the evidence, viewed in the light most favorable to the People (see, People v Contes, 60 NY2d 620, 621), is legally sufficient to support the conviction (see, People v Bleakley, 69 NY2d 490, 495). The proof establishes that defendant acted as an accomplice (see, Penal Law § 20.00) in the possession and use of a stolen credit card to purchase a television and VCR (see, People v Moye, 275 AD2d 887, 888, lv denied 95 NY2d ; People v Mathis, 147 AD2d 851, 854, lv denied 73 NY2d 1018; People v Mitchell, 126 AD2d 754). Because the evidence of defendant’s guilt as an accomplice was both direct and circumstantial, Supreme Court was not required to give a moral certainty charge (see, People v DeJesus, 256 AD2d 59, lv denied 93 NY2d 969; see also, People v Goncalves, 283 AD2d 1005). The court properly denied defendant’s motion to suppress identification testimony. Contrary to defendant’s contention, the individuals portrayed in the photo array “resemble each other sufficiently so that there was not a ‘substantial likelihood that the defendant would be singled out for identification’ ” (People v Beason, 252 AD2d 975, lv denied 92 NY2d 980, quoting People v Chipp, 75 NY2d 327, 336, cert denied 498 US 833; see, People v Dread, 245 AD2d 1076, lv denied 91 NY2d 1007). (Appeal from Judgment of Supreme Court, Monroe County, V anStry donck, J. — Forgery, 2nd Degree.) Present— Pigott, Jr., P. J., Green, Hayes, Burns and Lawton, JJ.