| People v Kurth |
| 2011 NY Slip Op 01862 [82 AD3d 905] |
| March 8, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v LloydKurth, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (Elizabeth L. Guinup and Andrew R.Kass of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (Neary, J.),rendered December 22, 2008, convicting him of grand larceny in the fourth degree, criminalpossession of stolen property in the fourth degree, and official misconduct, after a nonjury trial,and imposing sentence.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conductan independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342[2007]), we nevertheless accord great deference to the factfinder's opportunity to view thewitnesses, hear the testimony, and observe demeanor (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 notagainst the weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
The defendant failed to preserve for appellate review his contention that the grand juryproceeding was defective because it failed "to conform to the requirements of [CPL article 190]to such degree that the integrity thereof is impaired and prejudice to the defendant may result"(CPL 210.35 [5]; see People v Brown, 81 NY2d 798 [1993]; People v Bryan, 50 AD3d 1049,1050 [2008]; People v Workman, 277 AD2d 1029, 1031 [2000]). In any event, thealleged improper conduct on the part of the prosecutor did not impair the integrity of the grandjury proceeding or prejudice the defendant (see CPL 210.35 [5]; People vBrownlee, 121 AD2d 553, 554 [1986]; cf. People v Huston, 88 NY2d 400, 409[1996]).
Furthermore, the defendant's contention that certain records of the Orange County Sheriff'sDepartment involving a firearm receipt and evidence logbook were improperly admitted intoevidence under the business records exception to the hearsay rule is unpreserved for appellatereview (see CPL 470.05 [2]; People v Verrilli, 69 AD3d 963, 964 [2010]; People v Sprosta, 49 AD3d 784,785 [2008]) and, in any event, is without merit. Insofar as the documents constituted hearsayevidence, the People properly [*2]established a foundation for theadmission of the documents as business records (see CPLR 4518 [a]; People vGuidice, 83 NY2d 630, 635 [1994]; Matter of Leon RR, 48 NY2d 117, 122 [1979];Johnson v Lutz, 253 NY 124 [1930]; People v Bell, 286 AD2d 443 [2001];cf. People v Kennedy, 68 NY2d 569, 579-580 [1986]). Furthermore, contrary to thedefendant's contention, admission of the documents did not violate his Sixth Amendment right toconfront his accusers (see People vDail, 69 AD3d 873, 874 [2010]; see also Melendez-Diaz v Massachusetts, 557US —, —, 129 S Ct 2527, 2539-2540 [2009]; Crawford v Washington, 541US 36, 56 [2004]). Moreover, the defendant's contention that he was deprived of the effectiveassistance of counsel by virtue of trial counsel's failure to object to the admission of thesedocuments into evidence is without merit, as "[t]here can be no denial of effective assistance oftrial counsel arising from counsel's failure to 'make a motion or argument that has little or nochance of success' " (People vCaban, 5 NY3d 143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 287 [2004]; see People v Contant, 77 AD3d967, 969 [2010]; People vKent, 79 AD3d 52, 71 [2010]). Angiolillo, J.P., Chambers, Austin and Miller, JJ.,concur.