| People v Johnston |
| 2007 NY Slip Op 07079 [43 AD3d 1273] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DavidJohnston, Appellant. |
—[*1] David Johnston, defendant-appellant pro se.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered June23, 2005. The judgment convicted defendant, upon a jury verdict, of burglary in the seconddegree (two counts), criminal possession of stolen property in the fourth degree, unlawfulimprisonment in the second degree, petit larceny and criminal mischief in the fourth degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia,two counts of burglary in the second degree (Penal Law § 140.25 [2]) and one count ofunlawful imprisonment in the second degree (§ 135.05), defendant contends that theconviction of burglary and unlawful imprisonment is not supported by legally sufficientevidence. Defendant failed to preserve that contention for our review (see People v Gray,86 NY2d 10, 19 [1995]). Contrary to defendant's further contention, the verdict on the burglarycounts is not against the weight of the evidence (see generally People v Bleakley, 69NY2d 490, 495 [1987]).
Defendant failed to preserve for our review his contentions that he was denied a fair trialwhen he appeared before the jury in prison-issued clothing and when he was required to wear aweighted boot, inasmuch as defendant merely noted his appearance for the record and neitherformally objected nor requested any relief (see CPL 470.05 [2]; see also People vRosado, 166 AD2d 544, 545 [1990], lv denied 77 NY2d 843 [1991]). In any event,defendant's contentions lack merit. There is no evidence in the record that the clothing worn bydefendant, although issued by the prison, "bore the markings of 'prison garb' " (People vReid, 137 AD2d 844, 845 [1988], lv denied 71 NY2d 901 [1988], quoting Peoplev Roman, 35 NY2d 978, 979 [1975]; see People v Everson, 262 AD2d 1059 [1999],lv denied 94 NY2d 903 [2000]). Nor is there any evidence that the weighted boot wasvisible to the jury or identifiable as a leg restraint (see People v Tascarella, 227 AD2d888, 888-889 [1996], lv denied 89 NY2d 867 [1996]).
Contrary to defendant's further contention, County Court's Sandoval ruling was notan abuse of discretion. "The record establishes that the court properly balanced the probativevalue of the prior convictions against the potential for undue prejudice" (People vMontgomery, 288 [*2]AD2d 909, 910 [2001], lv denied97 NY2d 685 [2001]; see People v Williams, 56 NY2d 236, 238-239 [1982]). Wefurther conclude that defendant was not prejudiced by the admission of his mug shot in evidenceinasmuch as the court informed the jury that the mug shot was taken at the time of his arrest forthe charges at issue (see People v Thiessen, 158 AD2d 737, 740 [1990], mod on othergrounds 76 NY2d 816 [1990]). Defendant further contends that he was denied a fair trial byprosecutorial misconduct on summation. "[B]y failing to object during the prosecutor'ssummation, defendant failed to preserve for our review his contention that remarks made duringsummation constituted prosecutorial misconduct that deprived him of a fair trial" (People v Smith, 32 AD3d 1291,1292 [2006], lv denied 8 NY3d 849 [2007]; see CPL 470.05 [2]; People v Soto, 2 AD3d 1401[2003], lv denied 1 NY3d 634 [2004]; People v Jackson, 291 AD2d 930 [2002],lv denied 98 NY2d 677 [2002]). "In any event, the prosecutor's comments were not soegregious as to deny defendant a fair trial" (People v Crawford, 299 AD2d 848, 849[2002], lv denied 99 NY2d 581, 653 [2003]; see People v Chatman, 281 AD2d964, 966 [2001], lv denied 96 NY2d 899 [2001]).
Contrary to the additional contentions of defendant, he received meaningful representation(see generally People v Baldi, 54 NY2d 137, 147 [1981]), and the sentence is not undulyharsh or severe. Finally, we have reviewed the additional contention raised by defendant in hispro se supplemental brief and conclude that it is without merit. Present—Scudder, P.J.,Smith, Fahey, Peradotto and Pine, JJ.