PEOPLE v. LEVINE

MEMORANDUM.

The order of the Appellate Division should be affirmed.

The circumstantial evidence was sufficient to support the jury's verdict of guilty of murder in the second degree. The record shows that defendant lived in an apartment adjoining the victim's and he could have had access to her apartment either through the door or across a ledge and through a partially opened window. He used a credit card belonging to the victim to buy a pair of shoes within two or three hours after the victim had been strangled and stabbed to death in her bedroom. He falsely stated that he found a wallet containing the credit card in a park at a time after he used the card to buy the shoes and that he had thrown the wallet away. The victim's wallet containing her other credit cards was found, pursuant to a search warrant, in a box in defendant's bedroom. The victim had not reported her credit cards missing, and when her body was discovered, her purse was found on her living room table, opened, with no money or credit cards inside. Upon examination of defendant following his arrest, scratch marks were observed on his back.

Defendant's false statements are not only evidence of consciousness of guilt of some crime, but also show defendant's attempts to distance himself from the time and place of the murder ( see, People v Benzinger, 36 N.Y.2d 29, 33-34). These facts taken all together, in combination with the evidence of motive, are inconsistent with defendant's innocence and exclude to a moral certainty every other reasonable hypothesis ( see, People v Marin, 65 N.Y.2d 741; People v Bearden, 290 N.Y. 478, 480; see also, People v Baskerville, 60 N.Y.2d 374, 382-383 [discussing the inference that may be drawn from recent possession of the fruits of a crime]).

We have considered defendant's other contentions and find them to be without merit.

Chief Judge WACHTLER and Judges JASEN, MEYER, SIMONS, KAYE, TITONE and BOOMER concur; Judge ALEXANDER taking no part.

Order affirmed in a memorandum.