| People v Samandarov |
| 2008 NY Slip Op 08762 [56 AD3d 575] |
| November 12, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Simon Samandarov, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J.Caferri, and Laura T. Ross of counsel), for respondent.
Appeals by the defendant (1) from a judgment of the Supreme Court, Queens County(Buchter, J.), rendered March 15, 2005, convicting him of attempted murder in the seconddegree, assault in the second degree, criminal possession of a weapon in the second degree, andcriminal possession of a weapon in the third degree (two counts), upon a jury verdict, andimposing sentence, and (2), by permission, from an order of the same court dated December 12,2006, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate thejudgment of conviction rendered March 15, 2005.
Ordered that the judgment and the order are affirmed.
The Supreme Court properly denied, without a hearing, the defendant's motion to set asidethe verdict pursuant to CPL 330.30 (2), based upon alleged juror misconduct (see People v Martin, 54 AD3d 776[2008]; People v Vincent, 48 AD3d835 [2008]; People v Covington,44 AD3d 510 [2007]; cf. People v Maragh, 94 NY2d 569 [2000]; People vMagnano, 175 AD2d 639 [1991]; People v Gardella, 55 AD2d 607 [1976]).Moreover, upon our independent review pursuant to CPL 470.15 (5), we are satisfied that,contrary to the defendant's contention, the verdict of guilt was not against the weight of theevidence (see People v Romero, 7NY3d 633 [2006]).
The court also correctly denied, without a hearing, the defendant's motion pursuant to CPL[*2]440.10 to vacate his conviction, inasmuch as the defendantfailed to demonstrate that there was a Rosario violation (see People v Rosario, 9NY2d 286 [1961], cert denied 368 US 866 [1961]) or that, if such violation did occur,there was a reasonable possibility that any failure by the prosecution to make Rosariodisclosure materially contributed to the verdict (see People v Machado, 90 NY2d187, 188-189 [1997]; People v Cohen, 242 AD2d 473 [1997]; People v Adorno,202 AD2d 439 [1994]). Fisher, J.P., Miller, Dillon and Eng, JJ., concur.