| People v Gross |
| 2010 NY Slip Op 08960 [78 AD3d 1196] |
| November 30, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JamesGross, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Hinrichs, J.),rendered March 24, 2009, convicting him of robbery in the second degree, upon a jury verdict,and imposing sentence. The appeal brings up for review the denial of that branch of thedefendant's omnibus motion which was to dismiss the indictment on the ground that he wasdeprived of his constitutional right to a speedy trial.
Ordered that the judgment is affirmed.
The defendant's contention that he was deprived of his constitutional right to a speedy trial iswithout merit (see People v Cousart, 58 NY2d 62, 66 [1982]; People vTaranovich, 37 NY2d 442, 445 [1975]). Accordingly, the County Court correctly denied thatbranch of the defendant's omnibus motion which was to dismiss the indictment based on apurported constitutional speedy trial violation.
Contrary to the defendant's contention, he was not prejudiced by the fact that his feet wereshackled while he sat at the defense table during the trial. The County Court articulated areasonable basis on the record justifying the use of shackles, namely, that the defendant hadpreviously become agitated and had removed his handcuffs while in custody (see People vRobinson, 64 AD3d 803 [2009]; cf. People v Buchanan, 13 NY3d 1, 4 [2009][requiring rational basis for stun belt restraint]). Moreover, no undue prejudice was shownbecause the shackles were hidden from the jury's view by a black bunting around the defendant'stable, and the shackles were removed while the defendant testified (see People v Rush,44 AD3d 799 [2007]; People v Pruitt, 28 AD3d 588 [2006]; People v Bailey, 205AD2d 789 [1994]).
The defendant's challenge to the legal sufficiency of the evidence supporting his conviction isunpreserved for appellate review (see CPL 470.05; People v Hawkins, 11 NY3d484, 492 [2008]). In any event, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legallysufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (see CPL470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accord greatdeference 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 was not against the weight of the evidence (see [*2]People v Romero, 7 NY3d 633, 644-645 [2006]).
The defendant further contends that the People failed to provide him with notice pursuant toCPL 710.30 (1) of a statement he gave to detectives in the form of a map he drew indicating thelocation of a stolen pocketbook he discarded after the robbery at issue. However, since the proofof the defendant's guilt was overwhelming, and there is no significant probability that thePeople's failure to provide notice pursuant to CPL 710.30 (1) contributed to the defendant'sconviction, the People's failure to provide notice pursuant to CPL 710.30 (1) was harmless (see People v Crimmins, 36 NY2d 230, 242[1975]; People v Thomas, 58 AD3d 645 [2009]; People v Peterkin, 245 AD2d1050, 1050-1051 [1997]).
Finally, the defendant's contention that he was deprived of a fair trial due to the prosecutor'ssummation comments which impermissibly shifted the burden of proof is unpreserved forappellate review. In any event, the defendant's contention is without merit, since where, as here, adefendant elects to present evidence of his innocence, his failure to call certain witnesses orproduce certain relevant evidence in support of his defense may be brought to the jury's attentionby the prosecutor on summation, provided that the prosecutor's comments are not made in badfaith and are merely efforts to persuade the jury to draw inferences supporting the People'sposition (see People v Tankleff, 84 NY2d 992, 994-995 [1994]; People vWilliams, 13 AD3d 660 [2004]).
The sentence imposed was not excessive (see People v Morris, 57 AD3d 573 [2008];People v Suitte, 90 AD2d 80, 83 [1982]).
The defendant's remaining contention is without merit. Skelos, J.P., Covello, Balkin andSgroi, JJ., concur.