People v. Brown
849 N.Y.S.2d 901
N.Y. App. Div.
2008
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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v HEWLETT D. BREWSTER, Appellant.

Appellate Division of the Supreme Court of the State of New York, Second Department

December 26, 2007

849 N.Y.S.2d 902

Appeal by the defendant from a judgment of the County Court, Suffolk County (Weber, J.), rendered February 22, 2005, convicting him of burglary in the third degree (two counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant's contention that the evidence was legally insufficient to establish his guilt beyond a reasonable doubt is unpreserved for appellate review (see CPL 470.05 [2]; ; ; ; ). In any event, viewing the evidence in the light most favorable to the prosecution (see ), we find that it was legally sufficient to establish the defendant's guilt of burglary in the third degree beyond a reasonable doubt (see ; ). Upon the exercise of our factual review power (see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against the weight of the evidence (see ).

Furthermore, the trial court's circumstantial evidence charge adequately conveyed to the jury the principle that it must appear that the inference of guilt was the only one that could fairly and reasonably be drawn, and the evidence had to exclude beyond a reasonable doubt every hypothesis of innocence (see ; ). Contrary to the defendant's contention, "it was not necessary that [the] circumstantial evidence charge use the words 'moral certainty'" (, quoting ).

The sentence imposed was not excessive (see ).

Spolzino, J.P., Skelos, Florio and Dickerson, JJ., concur.