SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

863 

KA 10-01429 

PRESENT: WHALEN, P.J., SMITH, LINDLEY, TROUTMAN, AND SCUDDER, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

KEITH BRYANT, DEFENDANT-APPELLANT. 

(APPEAL NO. 1.) 

 

CHARLES T. NOCE, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF

COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Monroe County Court (Robert B.

Wiggins, A.J.), rendered May 3, 2010. The judgment convicted

defendant, upon a jury verdict, of burglary in the third degree, petit

larceny and criminal mischief in the third degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: In appeal No. 1, defendant appeals from a judgment

convicting him following a jury trial of, inter alia, burglary in the

third degree (Penal Law § 140.20). Contrary to defendant’s

contention, the verdict is not against the weight of the evidence. An

eyewitness testified that he observed a man fitting defendant’s

general description leave a children’s clothing store after 9:00 p.m.

through the broken front door, carrying several coats. Shortly

thereafter, the police received a tip from an identified informant

that a man was selling children’s coats at a “drug house”

approximately one block from the store and, when the police arrived at

that location, they found defendant in a room with several children’s

coats with tags from the store. The store owner testified that she

asked the police if she could speak to the suspect seated in the

patrol car and, when she did so, the person apologized to her. Thus,

viewing the evidence in light of the elements of the crime as charged

to the jury (see People v Danielson, 9 NY3d 342, 349), we conclude

that a different verdict would have been unreasonable and thus that

the verdict is not against the weight of the evidence (see generally

People v Bleakley, 69 NY2d 490, 495).

Contrary to defendant’s further contention, County Court properly

refused to suppress the statement defendant made to the owner of the

store based on the People’s failure to provide a CPL 710.30 notice
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KA 10-01429 

with respect to that statement. The store owner was not acting as an

agent of the police and therefore no notice pursuant to CPL 710.30 was

required (see People v Jones, 292 AD2d 792, 792, lv denied 98 NY2d

652; see generally People v Ray, 65 NY2d 282, 286). The court also

properly denied defendant’s motion to set aside the verdict pursuant

to CPL 330.30 on the ground that the court erred in admitting that

statement. “It is well settled that ‘[t]he basis for vacating a jury

verdict prior to sentencing is strictly circumscribed by CPL 330.30 to

allow vacatur only if reversal would have been mandated on appeal as a

matter of law’ ” (People v Shelton, 111 AD3d 1334, 1334, lv denied 23

NY3d 1025), and that is not the case here. 

Although the People correctly concede that the police were

required to retain the stolen coats until they had given notice to

defendant that the coats were being returned to the store owner and

had afforded him an opportunity to examine, test or photograph them

(see Penal Law § 450.10 [1], [2]), we reject defendant’s contention

that the court abused its discretion in refusing to dismiss the

indictment or preclude any evidence regarding the coats. It is well

established that the determination of a sanction for a violation of

section 450.10 is left to the sound discretion of the court (see

People v Riley, 19 NY3d 944, 946, adhered to on rearg 20 NY3d 980;

People v Kelly, 62 NY2d 516, 520-521), and that those sanctions are

not to be used “if less severe measures can rectify the harm done” by

the failure of the police to retain the evidence (Kelly, 62 NY2d at

521; see People v Jenkins, 98 NY2d 280, 284). Inasmuch as the court

determined that there was no bad faith on the part of the police in

returning the coats to the store owner and defense counsel argued that

there was no forensic evidence connecting defendant to the crime, the

court’s determination to instruct the jury to infer that there was no

fingerprint or DNA evidence on the coats or the hangers was

appropriate (see People v Perkins, 56 AD3d 944, 945-946, lv denied 12

NY3d 786; see generally People v McCall, 289 AD2d 1074, 1074, lv

denied 97 NY2d 757). Defendant’s contention that there may have been

evidence that exonerated him is entirely speculative. The store owner

testified that she did not observe any blood on the coats, and an

evidence technician testified that fingerprints could not be obtained

from fabric and that it was unlikely that a clear print could be

obtained from the hangers based upon their shape and the number of

people who would have handled them. 

Even assuming, arguendo, that the court erred in admitting in

evidence a security video of poor quality that depicted a man walking

near the store, we conclude that any error is harmless. The evidence

of defendant’s guilt is overwhelming, and there is no reasonable

probability that defendant would have been acquitted if that evidence

was not admitted (see generally People v Crimmins, 36 NY2d 230, 241-

242). Defendant failed to preserve for our review his contention that

the court erred in permitting a police investigator to testify with

respect to the contents of the video (see CPL 470.05 [2]), and we

decline to exercise our power to review the contention as a matter of

discretion in the interest of justice (see CPL 470.15 [6] [a]). 

Finally, as defendant correctly concedes, reversal of the
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KA 10-01429 

judgment in appeal No. 2, convicting him upon his plea of guilty of

grand larceny in the fourth degree (Penal Law § 155.30 [1]), is

warranted only in the event that the judgment in appeal No. 1 is

reversed (see People v Monroe, 39 AD3d 1276, 1277, lv denied 9 NY3d

867; see generally People v Pichardo, 1 NY3d 126, 129), and here we

are affirming the judgment in appeal No. 1. 

Entered: November 10, 2016 Frances E. Cafarell

Clerk of the Court