| People v Powell |
| 2010 NY Slip Op 09790 [79 AD3d 1791] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Joyce Powell,Appellant. |
—[*1] Joyce Powell, defendant-appellant pro se. Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.),rendered June 12, 2007. The judgment convicted defendant, upon a jury verdict, of burglary inthe first degree (two counts) and assault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting her upon a jury verdict of two countsof burglary in the first degree (Penal Law § 140.30 [2], [3]) and one count of assault in thesecond degree (§ 120.05 [2]), defendant contends that the verdict is against the weight ofthe evidence. We reject that contention. Viewing the evidence in light of the elements of thecrimes as charged to the jury (see Peoplev Danielson, 9 NY3d 342, 349 [2007]), and according great deference to the jury'sresolution of credibility issues, we conclude that the verdict is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant failed to preserve for our review her further contention that Supreme Court erredin discharging a sworn juror (see Peoplev Ballard, 51 AD3d 1034, 1035-1036 [2008], lv denied 11 NY3d 734 [2008]; People v Coleman, 32 AD3d 1239,1240 [2006], lv denied 8 NY3d 844 [2007]), and we reject her contention thatpreservation is not required inasmuch as the court's allegedly erroneous determination todischarge the juror did not constitute a mode of proceedings error (see People v Kelly, 5 NY3d 116,119-120 [2005]). In any event, defendant's contention concerning the court's alleged error indischarging the sworn juror is without merit. Under the circumstances of this case, we concludethat the court properly discharged the juror from service pursuant to CPL 270.35 (see People v Holloway, 57 AD3d404, 405 [2008], lv denied 12 NY3d 784 [2009]; People v Rosado, 53 AD3d 455, 457 [2008], lv denied 11NY3d 835 [2008], cert denied 556 US —, 129 S Ct 2161 [2009]; see generallyPeople v Buford, 69 NY2d 290, 298-299 [1987]). Also contrary to defendant'scontention, the sentence is not unduly harsh or severe.[*2]
In her pro se supplemental brief, defendant furthercontends that the court erred in failing to dismiss the indictment based on prosecutorialmisconduct during the grand jury proceedings. We are unable to review that contention becauseit involves matters that are outside the record on appeal, and thus that contention is not properlybefore us (see generally People vDonald, 6 AD3d 1177 [2004], lv denied 3 NY3d 639 [2004]; People vMarvin, 216 AD2d 930 [1995], lv denied 86 NY2d 844 [1995]). The furthercontention of defendant in her pro se supplemental brief that she was denied a fair trial byprosecutorial misconduct is based primarily on alleged instances of misconduct that areunpreserved for our review (see Peoplev Jones, 63 AD3d 1582, 1583 [2009], lv denied 13 NY3d 797 [2009]; People v Scission, 60 AD3d 1391[2009], lv denied 12 NY3d 859 [2009], reconsideration denied 13 NY3d 749[2009]). In any event, we conclude that "any alleged misconduct was not so pervasive oregregious as to deprive defendant of a fair trial" (People v Pruchnicki, 74 AD3d 1820, 1822 [2010], lv denied15 NY3d 855 [2010]; see People vMilczakowskyj, 73 AD3d 1453, 1454 [2010], lv denied 15 NY3d 754 [2010]).
Finally, we are unable to review the further contention of defendant in her pro sesupplemental brief that she received ineffective assistance of counsel insofar as that contention isbased on matters outside the record (seePeople v Hernandez, 74 AD3d 839 [2010], lv denied 15 NY3d 805 [2010]; People v Slater, 61 AD3d 1328,1329-1330 [2009], lv denied 13 NY3d 749 [2009]), and we conclude on the recordbefore us that defendant's contention is otherwise without merit (see generally People vBaldi, 54 NY2d 137, 147 [1981]). Present—Martoche, J.P., Centra, Fahey andSconiers, JJ.