| People v Cruz |
| 2010 NY Slip Op 09934 [79 AD3d 1145] |
| December 28, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Geraldo Cruz, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Brennan of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Gazzillo, J.),rendered March 13, 2009, convicting him of burglary in the second degree, upon a jury verdict,and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, there was a sufficiently "reasonable basis, articulatedon the record" for the defendant's legs to be shackled during the trial (People v Rouse, 79NY2d 934, 935 [1992]; see People v Robinson, 64 AD3d 803 [2009]; People vRush, 44 AD3d 799, 800 [2007]). The County Court set forth, on the record, its reasons forallowing the defendant's legs to be shackled, including the defendant's lengthy criminal record,the level of security in the courtroom, and the fact that the defendant had mailed letters to thecomplainant prior to the trial, which showed "animus toward the witness" (see People vRouse, 79 NY2d at 935; People v Brunson, 68 AD3d 1551 [2009]). The CountyCourt subsequently noted that it implemented this procedure on the recommendation of securitypersonnel.
Further, the potential prejudice was ameliorated by the fact that the shackles were concealedfrom the jury by black bunting placed around the defendant's table, and the County Court'sdirection to remove the shackles before the defendant testified (see People v Rush, 44AD3d at 800; People v Pruitt, 28 AD3d 588 [2006]; People v Bailey, 205 AD2d789, 790 [1994]; People v Tedesco, 143 AD2d 155, 159 [1988]). In People vBuchanan (13 NY3d 1 [2009]), the Court of Appeals held that a trial court may not use astun belt as a routine adjunct security measure in murder cases, but "must conduct a sufficientinquiry to satisfy itself of the facts that warrant the restraint" (id. at 4). The court need notconduct a formal inquiry (id.). Here, the County Court made "findings on the recordshowing that the particular defendant before him need[ed] . . . a restraint"(id.).
Contrary to the defendant's next contention, the County Court properly denied his request fora circumstantial evidence charge, because the People's case relied on both direct andcircumstantial evidence (see People v Johnson, 270 AD2d 431, 432 [2000]; People vBurgos, 170 AD2d 689 [1991]).
The defendant contends that certain remarks made by the prosecutor during summation [*2]were improper and, thus, deprived him of a fair trial. Reversal is notwarranted because most of the remarks either were responsive to defense counsel's summation orconstituted fair comment on the evidence. To the extent that any remarks were improper, they didnot deprive the defendant of a fair trial (see People v Garcia, 66 AD3d 699, 700 [2009],lv denied 14 NY3d 800 [2010]; People v Rudd, 62 AD3d 729 [2009]). Moreover,the County Court properly instructed the jurors that they were the finders of fact, that thearguments of counsel were not evidence, and that they were to assess the witnesses' credibility.
Contrary to the defendant's contention, the County Court gave meaningful responses to thejury's written requests during deliberations (see People v Agosto, 73 NY2d 963, 967[1989]; People v Lourido, 70 NY2d 428, 435 [1987]; CPL 310.30).
The defendant failed to preserve for appellate review his challenge to the legal sufficiency ofhis conviction of burglary in the second degree (see CPL 470.05 [2]). In any event,viewing the evidence in the light most favorable to the prosecution (see People v Contes,60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish the defendant's guiltof that crime beyond a reasonable doubt. In fulfilling our responsibility to conduct anindependent review of the weight of the evidence (see CPL 470.15 [5]; People vDanielson, 9 NY3d 342, 348-349 [2007]), we nevertheless accord great deference to thefactfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (seePeople 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 aresatisfied that the verdict of guilt was not against the weight of the evidence (see People vRomero, 7 NY3d 633, 634-635 [2006]).
The sentence imposed was not excessive (see People v Delgado, 80 NY2d 780[1992]; People v Thompson, 60 NY2d 513, 519 [1983]; People v Suitte, 90AD2d 80, 85-86 [1982]). Skelos, J.P., Balkin, Eng and Austin, JJ., concur.