| People v Sayles |
| 2008 NY Slip Op 09823 [57 AD3d 698] |
| December 9, 2008 |
| Appellate Division, Second Department |
| mThe People of the State of New York, Respondent, v DavidSayles, Appellant. |
—[*1] Thomas P. Zugibe, District Attorney, New City, N.Y. (Elana L. Yeger and Vered Adoni ofcounsel; Zipora Zicherman-Book on the brief), for respondent.
Appeal by the defendant from a judgment of the County Court, Rockland County (Nelson, J.),rendered January 26, 2006, as amended February 2, 2006, convicting him of burglary in the seconddegree and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment, as amended, is affirmed.
The defendant's contention that the People failed to establish his guilt by legally sufficient evidenceis unpreserved for appellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d10, 19-21 [1995]). In any event, viewing the evidence in the light most favorable to the prosecution(see People v Contes, 60 NY2d 620, 621 [1983]), and giving the People the benefit of everyreasonable inference which could be drawn from the circumstantial evidence adduced (see People vLewis, 64 NY2d 1111, 1112 [1985]; People v Way, 59 NY2d 361, 365 [1983]), wefind that the evidence was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.Upon our independent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt wasnot against the weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
" '[T]he decision to declare a mistrial rests within the sound discretion of the trial court which is inthe best position to determine if this drastic remedy is truly necessary to protect the defendant's right toa fair trial' " (People v Knorr, 284 AD2d 411, 412 [2001], quoting People v Williams,264 AD2d 745, 746 [1999]; see also People v Rice, 75 NY2d 929 [1990]). Under thecircumstances here, the trial court providently exercised its discretion in denying the defendant's motionfor a mistrial based on a [*2]remark made by a venire person who hadbeen dismissed for cause during jury selection.
The defendant's contention, raised in his supplemental pro se brief, that he was not present at therestitution hearing, is belied by the record. The defendant's appearance was noted on the record. Ritter,J.P., Florio, Miller and Carni, JJ., concur.