| People v Brink |
| 2008 NY Slip Op 10386 [57 AD3d 1484] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Richard CharlesBrink, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Stephen R. Sirkin, A.J.),rendered July 30, 2003. The judgment convicted defendant, upon a jury verdict, of burglary in thesecond degree, criminal mischief in the fourth degree (two counts), attempted burglary in the seconddegree and petit larceny.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia,burglary in the second degree (Penal Law § 140.25 [2]) and attempted burglary in the seconddegree (§§ 110.00, 140.25 [2]). Contrary to the contention of defendant, Supreme Courtproperly denied the request for a mistrial that he made after he learned that some of the jurors hadpossibly read a newspaper article concerning his prior convictions. "[I]t has been uniformly held that thetrial judge 'is required to take appropriate steps to insure that the jurors [have] not been exposed to orprejudiced by such accounts' " (People v Rivera, 26 NY2d 304, 307 [1970]). Here, weconclude that the court took the appropriate steps by excusing only the two jurors who indicated thatthey had read all or part of the article and determining that the remaining jurors were unaware of thearticle (see People v Shaw, 92 AD2d 623, 624-625 [1983]). We reject defendant's furthercontention that the court erred in failing to discharge an alternate juror who was substituted for one ofthe excused jurors and who allegedly had been asleep during the trial (see People v Bradley, 38 AD3d 793,794 [2007], lv denied 9 NY3d 863 [2007]; People v Martin, 28 AD3d 583, 584 [2006], lv denied 7 NY3d791 [2006]). The record establishes that "defendant did not request that the court make an inquiry ofthe juror, nor did he move to discharge the juror. The defendant thus demonstrated a willingness tocontinue to accept the juror as a trier of fact" (People v Quinones, 41 AD3d 868, 868 [2007], lv denied 9NY3d 1008 [2007]).
Contrary to the contention of defendant, the court did not abuse its discretion in denying his requestfor an adjournment to enable him to secure the attendance of a witness (see generally Matter ofAnthony M., 63 NY2d 270, 283 [1984]; People v Singleton, 41 NY2d 402, 405[1977]), inasmuch as defendant indicated in his offer of proof that the witness would testify solely withrespect to collateral matters [*2]concerning the credibility of thePeople's witnesses (see People v Dawson, 249 AD2d 977, 978 [1998], lv denied 93NY2d 872 [1999]; People v Chen Liu, 244 AD2d 352 [1997], lv denied 91 NY2d924 [1998]). Defendant failed to preserve for our review his contention that the conviction is notsupported by legally sufficient evidence (see People v Hines, 97 NY2d 56, 61 [2001],rearg denied 97 NY2d 678 [2001]; People v Gray, 86 NY2d 10, 19 [1995]) and,contrary to his further contention, the verdict is not against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). Defendant also failed to preserve for our reviewhis contention that he was denied a fair trial by prosecutorial misconduct on summation (see People v Johnston, 43 AD3d 1273,1274-1275 [2007], lv denied 9 NY3d 1007 [2007]; People v Smith, 32 AD3d 1291, 1292 [2006], lv denied 8NY3d 849 [2007]) and, in any event, that contention lacks merit (see People v Williams, 28 AD3d 1059, 1060-1061 [2006], affd8 NY3d 854 [2007]; People v Galloway, 54 NY2d 396, 399 [1981]). The sentence is notunduly harsh or severe. We have reviewed defendant's remaining contention and conclude that it doesnot warrant reversal. Present—Scudder, P.J., Martoche, Smith, Green and Gorski, JJ.