SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1448
KA 10-01824
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
GORDON L. MONTGOMERY, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANE I. YOON OF
COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (CHRISTOPHER M. KVAM OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (Charles F.
Crimi, Jr., A.J.), rendered July 23, 2010. The judgment convicted
defendant, upon a jury verdict, of criminal possession of stolen
property in the fifth degree, criminal possession of a forged
instrument in the second degree and identity theft in the first
degree.
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 criminal possession of stolen property in the
fifth degree (Penal Law § 165.40), criminal possession of a forged
instrument in the second degree (§ 170.25) and identity theft in the
first degree (§ 190.80 [3]). The conviction is based upon defendant’s
possession of a “convenience check” issued against the victim’s credit
card account, and his use of the convenience check to purchase
merchandise. Viewing the evidence in light of the elements of the
crimes as charged to the jury (see People v Danielson, 9 NY3d 342,
349), we conclude that the verdict finding that defendant was the
person who committed the crimes is not against the weight of the
evidence (see generally People v Bleakley, 69 NY2d 490, 495). The
People presented evidence that included a store surveillance video and
the testimony of a police officer familiar with defendant who
identified defendant after he viewed the video. The officer testified
that he recognized defendant from his facial features and distinctive
bowlegged gait. In addition, the People presented evidence that
defendant and the victim had post office boxes at the same post
office, and the jury was able to compare the handwriting on the change
of address form defendant submitted to the post office with the
handwriting on the convenience check. “[W]hile a different verdict
may not have been unreasonable, upon independently ‘weigh[ing] the
-2- 1448
KA 10-01824
probative force of conflicting testimony and the relative strength of
conflicting inferences that may be drawn from the testimony,’ we
conclude that the verdict is not against the weight of the evidence”
(People v Cascio, 79 AD3d 1809, 1811, lv denied 16 NY3d 893; see
People v Miller, 93 AD3d 882, 882-883, lv denied 19 NY3d 975,
reconsideration denied 20 NY3d 1063).
Entered: February 6, 2015 Frances E. Cafarell
Clerk of the Court