| People v Furey |
| 2010 NY Slip Op 06908 [77 AD3d 1357] |
| October 1, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Scott C.Furey, Appellant. |
—[*1] Donald H. Dodd, District Attorney, Oswego (Michael G. Cianfarano of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.), rendered May14, 2009. The judgment convicted defendant, upon a jury verdict, of kidnapping in the second degree,burglary in the second degree, menacing in the third degree, criminal mischief in the fourth degree andassault in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia,kidnapping in the second degree (Penal Law § 135.20) and burglary in the second degree(§ 140.25 [2]), defendant contends that County Court erred in denying his challenges for causeto two prospective jurors. We reject that contention. When one of the prospective jurors was unable tostate unequivocally that she could render an impartial verdict, the court conducted its own inquiry andelicited an unequivocal assurance of impartiality (see People v Gladding, 60 AD3d 1401 [2009], lv denied 12NY3d 925 [2009]; see generally People v Chambers, 97 NY2d 417, 419 [2002]; Peoplev Arnold, 96 NY2d 358, 362 [2001]). With respect to the second prospective juror in question,the record establishes that her relationships with several of the police witnesses were not " 'likely topreclude' " her from rendering an impartial verdict, and thus it cannot be said that she was inherentlybiased (People v Provenzano, 50 NY2d 420, 424 [1980]; see CPL 270.20 [1] [c]; People v Cassidy, 16 AD3d 1079,1080 [2005], lv denied 5 NY3d 760 [2005]).
Defendant failed to preserve for our review his further contention that the court erred in refusing tosuppress evidence seized during the inventory search of his vehicle (see People v Nix, 192AD2d 1116 [1993], lv denied 82 NY2d 757 [1993]), and we decline to exercise our powerto review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]). Defendant also failed to preserve for our review his contention that the evidence is not legallysufficient to support the conviction (see People v Gray, 86 NY2d 10, 19 [1995]). Viewing theevidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342,349 [2007]), we conclude that the verdict is not against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). Defendant [*2]contends that he was denied a fair trial based on three instances ofalleged prosecutorial misconduct. He failed to preserve for our review his contention with respect totwo of the alleged instances (see People v Beers, 302 AD2d 898 [2003], lv denied 99NY2d 652 [2003]), and we decline to exercise our power to review them as a matter of discretion inthe interest of justice (see CPL 470.15 [6] [a]). With respect to the third alleged instance ofprosecutorial misconduct, we agree with defendant that the prosecutor improperly elicited testimonythat defendant invoked his right to counsel during his interview with the police. We neverthelessconclude that the error is harmless (see People v McLean, 243 AD2d 756, 756-757 [1997],lv denied 91 NY2d 928 [1998]). Present—Scudder, P.J., Martoche, Smith, Fahey andGreen, JJ.