| People v Dombroff |
| 2007 NY Slip Op 07715 [44 AD3d 785] |
| October 9, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Richard Dombroff, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Karla Lato and Grazia DiVincenzo ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Pitts, J.),rendered September 3, 2003, convicting him of grand larceny in the second degree (five counts),grand larceny in the third degree (twelve counts), and scheme to defraud in the first degree, upona jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that the evidence was legally insufficient to sustain his conviction,and that the verdict of guilt was against the weight of the evidence. Viewing the evidence in thelight most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), wefind that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see People v Zuga, 23 AD3d 315[2005]; People v Keyes, 298 AD2d 234 [2002]; People v Wachulewicz, 295AD2d 169 [2002]). Moreover, resolution of issues of credibility is primarily a question to bedetermined by the jury, which saw and heard the witnesses, and its determination should beaccorded great deference on appeal (seePeople v Romero, 7 NY3d 633, 644-645 [2006]; People v Mateo, 2 NY3d 383,410 [2004], cert denied 542 US 946 [2004]). Upon the exercise of our factual reviewpower (see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against theweight of the evidence (see People v Romero, 7 NY3d [*2]at 633).
Contrary to the defendant's contention, the trial court provided a meaningful response tonotes from the deliberating jury seeking supplemental instructions regarding the definitions ofintent, defraud, and larceny (see People v Lourido, 70 NY2d 428, 435 [1987]; Peoplev Almodovar, 62 NY2d 126, 131 [1984]; People v Malloy, 55 NY2d 296, 298[1982], cert denied 459 US 847 [1982]; People v Pannell, 287 AD2d 659,659-660 [2001]). In response to the jury's notes, the trial court providently exercised itsdiscretion by rereading its full initial instructions on the definitions of intent, defraud, andlarceny, as the initial instructions were proper, and the jury indicated its satisfaction with theresponse (see People v Kirk, 16AD3d 230 [2005]; People v Riley, 254 AD2d 78 [1998]; People v Shanks,207 AD2d 710 [1994]; People v Saltares, 184 AD2d 740 [1992]).
The defendant's contention that his motion for a mistrial based on juror misconduct wasimproperly denied is without merit. It is well settled that "not every misstep by a juror rises to theinherently prejudicial level at which reversal is required automatically" (People v Clark,81 NY2d 913, 914 [1993]). "Because juror misconduct can take many forms, no ironcladrule of decision is possible. In each case the facts must be examined to determine the nature ofthe material placed before the jury and the likelihood that prejudice would be engendered"(People v Simon, 224 AD2d 458, 458 [1996]). Upon learning of various "postings" bythe jurors in the jury room during a trial recess the trial court, with the approval of the defensecounsel and the prosecutor, properly carried out a complete inquiry of each juror and alternateindividually, ascertaining the nature of the matters posted and any possible discussions and theextent of those discussions, as well as whether the postings and discussions affected each juror'sability to assess the credibility of witnesses, and whether each juror had formed an opinion as tothe defendant's guilt or innocence (see People v Simon, 224 AD2d at 458). The jurors'responses established that they had not been prejudiced by the postings or any discussions, andhad not made any premature determination as to the guilt or innocence of the defendant. As thetrial court's assessment "is afforded great weight because of its unique position to observe" thejurors (People v Simon, 224 AD2d at 458), its determination that a mistrial was notwarranted will not be disturbed.
The defendant contends that the admission into evidence of hearsay testimony anddocumentary evidence of certain statements by a nontestifying witness deprived him of hisconstitutional right to confrontation. However, since the defendant did not specifically argue thatthe complained-of testimony and documentary evidence deprived him of his right toconfrontation, that argument is unpreserved for appellate review (see CPL 470.05 [2]; People v Johnson, 43 AD3d 288[2007]). In any event, the defendant's right to confrontation was not violated by admission of thesubject statements into evidence because they were not testimonial in nature (see Davis vWashington, 547 US —, 126 S Ct 2266 [2006]; Crawford v Washington,541 US 36, 56 [2004]; People vMeekins, 34 AD3d 843 [2006]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 83[1982]).
The defendant's remaining contentions are without merit. Schmidt, J.P., Santucci, Florio andDillon, JJ., concur.