June 14, 2013
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
PAUL M. LARRABEE, DEFENDANT-APPELLANT.
Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.), rendered August 19, 2010. The judgment convicted defendant, upon a jury verdict, of burglary in the second degree and possession of burglar's tools.
MARY R. HUMPHREY, NEW HARTFORD, FOR DEFENDANT-APPELLANT.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., FAHEY, CARNI, AND SCONIERS, JJ.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the second degree (Penal Law § 140.25 ) and possession of burglar's tools (§ 140.35). Defendant failed to preserve for our review his challenge to the legal sufficiency of the evidence inasmuch as he made only a general motion for a trial order of dismissal (see People v Gray, 86 N.Y.2d 10, 19), and he failed to renew that motion after presenting evidence (see People v Hines, 97 N.Y.2d 56, 61, rearg denied 97 N.Y.2d 678). In any event, that contention lacks merit (see generally People v Bleakley, 69 N.Y.2d 490, 495). 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), we further conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495). "[R]esolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury" (People v Witherspoon, 66 A.D.3d 1456, 1457, lv denied 13 N.Y.3d 942 [internal quotation marks omitted]).
We agree with defendant that County Court erred in admitting evidence with respect to modifications made to the victim's home after the burglary and as to the effect of the burglary on the children who resided in that home (see People v Kelly, 71 A.D.3d 1520, 1521, lv denied 15 N.Y.3d 775; see generally People v Scarola, 71 N.Y.2d 769, 777). We note that, even assuming, arguendo, that defendant's contention is unpreserved for our review, we would nevertheless exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15  [a]). We conclude, however, that the error is harmless inasmuch as the evidence of defendant's guilt is overwhelming, and there is no significant probability that defendant would have been acquitted but for the admission of that testimony (see generally People v Crimmins, 36 N.Y.2d 230, 241-242).