| People v Higgins |
| 2008 NY Slip Op 10234 [57 AD3d 1315] |
| December 31, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v John R. Higgins,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Brett M. Knowles of counsel), forrespondent.
Carpinello, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered November 15, 2007, upon a verdict convicting defendant of the crimes of burglary in thesecond degree and criminal mischief in the fourth degree.
Indicted on charges of burglary in the second degree and criminal mischief in the fourth degreestemming from allegations that he broke into a friend's third-floor apartment and found guilty as chargedby a jury, defendant now appeals. He claims that County Court erred in its questioning of a prospectivejuror, that the in-court identification of a particular witness should have been excluded and that theverdict is against the weight of the evidence in that the People presented nothing more than "a longstrand of circumstantial, unreliable evidence." We now affirm.
During voir dire, a prospective juror disclosed that her husband had previously been convicted of acrime. Defendant now argues that County Court failed to get an unqualified assurance from this jurorthat she could nevertheless be objective and render an impartial verdict. Having failed to object toCounty Court's questioning of this juror or to otherwise challenge her, the issue is unpreserved forreview (see e.g. People v Fehr, 45AD3d 920, 923-924 [2007], lv denied 10 NY3d 764 [2008]; People vChapman, 229 AD2d 789 [1996]; compare People v [*2]Johnson, 94 NY2d 600 [2000]). Were we to review the matter, wewould find that the record does not support defendant's assertion that the prospective juror was"potentially biased" because of her husband's experience with the criminal justice system or that sheindicated an inability to render an impartial verdict (see CPL 270.20 [1] [b]). To the contrary,the prospective juror indicated that her husband was treated fairly, disavowed any animosity toward theprosecutor or defense counsel and indicated that she could set aside this event and render a fair andimpartial verdict (see People v Johnson, 94 NY2d at 614).
We next turn to the evidence adduced at trial to evaluate defendant's claim that the verdict isagainst the weight of the evidence. Between 4:15 and 4:20 p.m. on December 5, 2006, RayBassaillon's third-floor apartment was broken into by an intruder who smashed a window overlooking afire escape. William Corns, a tenant in the apartment building next door, and Anthony Moro, a tenanton the first-floor of Bassaillon's building, heard the smashing of glass. In response, Moro walked outinto the common hallway of the building at which point he observed an individual come down the stairsand walk by him. According to Moro, he was able to get a good look at this person as the lights wereon in the foyer and the person was only 1½ to 2 feet away from him. Moro identified defendant incourt as being that person.
In the meantime, Corns, upon hearing the smashing of glass and observing the blue pants and beigeboots of a person entering Bassaillon's apartment from the fire escape, ran outside to investigate.Shortly thereafter, he observed a man wearing blue pants and beige boots exit Bassaillon's apartmentbuilding. The two came face-to-face for a brief moment at which point the man shouted an expletiveand fled. Corns pursued him. According to Corns, it was sufficiently light at the time to get a good lookat this person. The pursuit eventually came to an end when the man jumped into the passenger side of aparticular vehicle, which then sped away.
Bassaillon, upon hearing the description of the fleeing vehicle, suspected defendant, his friend sincechildhood. Thus, a day or two after the incident, Bassaillon and Corns went in search of the vehicle andlocated it in defendant's neighborhood, itself a short distance away. On a second trip out together, theyencountered defendant on the street. At this time, Corns confirmed to Bassaillon that defendant was theperson who he observed coming out of his building and who he chased. Corns also identified defendantin court. Defendant, in addition to highlighting discrepancies in these witnesses' physical descriptions ofthe intruder, also presented evidence that he was seen at his mother's residence at approximately 4:05p.m. on the day in question and again between 5:05 and 5:10 p.m., and that his vehicle was not in thevicinity of the subject neighborhood during Corns' pursuit of the intruder.
Upon the exercise of our factual review power (see People v Romero, 7 NY3d 633, 643-644 [2006]; People vBleakley, 69 NY2d 490, 495 [1987]), we reject defendant's contention that his convictions areagainst the weight of the evidence. While a contrary verdict would not have been unreasonable had thejury rejected the testimony of Corns and Moro based on the highlighted discrepancies and/or acceptedthe testimony of defense witnesses that neither defendant nor his vehicle was in the vicinity ofBassaillon's apartment during the time period in question, it was the jury's province to resolve allcredibility issues. Viewing the evidence in a neutral light and according deference to the jury's"opportunity to view the witnesses, hear the testimony and observe demeanor" (People vBleakley, 69 NY2d at 495), we conclude that the verdict finding defendant guilty as charged wasnot against the weight of the evidence (see CPL 470.15).[*3]
Finally, we have reviewed defendant's claim that Moro'sin-court identification of defendant was based on a photograph array that was both improperlyconducted and unduly suggestive and find both contentions to be without merit.
Mercure, J.P., Spain, Malone Jr. and Stein, JJ., concur. Ordered that the judgment is affirmed.