| People v Anderson |
| 2010 NY Slip Op 06590 [76 AD3d 980] |
| September 14, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v YkimAnderson, Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Cohen, J.),rendered March 20, 2008, convicting him of enterprise corruption, criminal sale of a controlledsubstance in the third degree (two counts), criminal possession of a controlled substance in thethird degree (two counts), burglary in the second degree, and criminal sale of a firearm in thethird degree (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that the evidence was legally insufficient to support his convictionsof enterprise corruption, criminal sale of a firearm in the third degree and, under counts 49 and50 of the superseding indictment, criminal sale of a controlled substance in the third degree andcriminal possession of a controlled substance in the third degree. However, only the challenges tothe convictions of criminal sale of a controlled substance in the third degree and criminalpossession of a controlled substance in the third degree under counts 49 and 50 of thesuperseding indictment are preserved for appellate review (see People v Hawkins, 11 NY3d 484, 492 [2008]). Upon theexercise of our interest of justice jurisdiction (see CPL 470.15 [6] [a]), we review thecontentions which are unpreserved for appellate review, as well as those contentions which arepreserved. Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt with respect to the challenged convictions beyond a reasonable doubt.
Moreover, in fulfilling our responsibility to conduct an independent review of the weight ofthe evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946[2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here,we are satisfied that the verdict of guilt with respect to the challenged convictions was notagainst the weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
Contrary to the defendant's contention, the trial court did not improvidently exercise itsdiscretion when it permitted a witness to testify as to threats certain individuals made to himprior to trial, as there was circumstantial evidence linking the defendant to those threats (see People v Arguinzoni, 48 AD3d1239, 1240 [2008]; People vMyrick, 31 AD3d 668, 669 [2006]; People v Hendricks, 4 AD3d 798, 799 [2004]; People vSpruill, 299 AD2d 374, 375 [2002]). "As the probative value of this testimony exceeded itsprejudicial [*2]potential, failure to conduct a Ventimigliahearing [see People v Ventimiglia, 52 NY2d 350 (1981)] does not necessitatereversal" (People v Sherman, 156 AD2d 889, 891 [1989]; see People v Andrews,277 AD2d 1009, 1009-1010 [2000]; People v Pugh, 236 AD2d 810, 812 [1997]).
The defendant's contention that the admission of a "rap video" containing statements madeby nontestifying codefendant Avery Green violated his right of confrontation under Crawfordv Washington (541 US 36 [2004]) and Bruton v United States (391 US 123 [1968])is without merit as the statements were not testimonial in nature and did not implicate thedefendant (see People v McBean, 32AD3d 549, 552 [2006]; People vDickson, 21 AD3d 646, 647 [2005]; People v Johnson, 224 AD2d 635, 636[1996]; People v Paulino, 187 AD2d 736 [1992]; see also People v Jenkins, 55 AD3d 850, 851 [2008]).
The testimony of a coconspirator was properly received into evidence under thecoconspirator exception to the hearsay rule (see People v Caban, 5 NY3d 143, 148 [2005]; People v Basagoitia, 55 AD3d 619[2008]; People v Warren, 156 AD2d 972 [1989]).
The defendant's challenge to the verdict sheet is unpreserved for appellate review (seePeople v Milland, 215 AD2d 505 [1995]) and, in any event, is without merit.
The defendant's contention that the County Court should have granted him youthful offenderstatus is unpreserved for appellate review (see People v Scott, 67 AD3d 1033 [2009]) and, in any event, iswithout merit.
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions are without merit. Mastro, J.P., Florio, Belen andChambers, JJ., concur.