| People v Smikle |
| 2011 NY Slip Op 02296 [82 AD3d 1697] |
| March 25, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v MajereSmikle, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Ashley M. Morgan of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.),rendered June 4, 2009. The judgment convicted defendant, upon a jury verdict, of burglary in thefirst degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofburglary in the first degree (Penal Law § 140.30 [4]), for unlawfully entering an occupiedapartment with a handgun in an apparent attempt to steal money or drugs. Defendant failed topreserve for our review his contention that Supreme Court failed to comply with CPL 310.30 inconnection with four jury notes and an oral request from a juror (see People v Starling,85 NY2d 509, 516 [1995]; People vPeller, 8 AD3d 1123 [2004], lv denied 3 NY3d 679 [2004]), and we decline toexercise our power to review that contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]). We reject the related contention of defendant that the court'salleged improper handling of the jury notes is a mode of proceedings error that need not bepreserved by a timely objection inasmuch as, here, the court read the jury notes into the recordbefore responding and thus fulfilled its "core responsibility" under CPL 310.30 (People v Kisoon, 8 NY3d 129,134 [2007]; see Starling, 85 NY2d at 516; People v Vazquez, 28 AD3d 1100, 1101 [2006], lv denied9 NY3d 965 [2007]).
We further conclude that the court's Sandoval ruling did not constitute a " 'clearabuse of discretion,' " warranting reversal (People v Nichols, 302 AD2d 953, 953 [2003],lv denied 99 NY2d 657 [2003]; see People v Reid, 34 AD3d 1273, 1274 [2006], lv denied 8NY3d 884 [2007]). The prior convictions in question bore directly on the credibility ofdefendant, inasmuch as they involved acts of dishonesty by him (see People v Robles, 38 AD3d1294, 1295 [2007], lv denied 8 NY3d 990 [2007]), and they reflected a willingnesson his part to place his interests above those of society (see People v Thomas, 8 AD3d 506 [2004], lv denied 3NY3d 682 [2004]; People v Bell, 249 AD2d 777, 778 [1998], lv denied 92 NY2d922 [1998]). The court similarly did not abuse its discretion in allowing the prosecutor toquestion defendant concerning the underlying facts of a juvenile delinquency adjudication inFamily Court (see People v Gray, 84 NY2d 709, 712 [1995]). We [*2]note that, although the record incorrectly refers to that adjudicationas a youthful offender adjudication, it is permissible to question a defendant with respect to theunderlying acts of either type of adjudication (see id.).
Defendant made only a general motion for a trial order of dismissal and thus failed topreserve for our review his contention that the conviction is not supported by legally sufficientevidence (see People v Gray, 86 NY2d 10, 19 [1995]). In any event, we reject thatcontention inasmuch as defendant was identified by two eyewitnesses at trial (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). Furthermore, viewing the evidence in light ofthe elements of the crime of burglary as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we concludethat the verdict is not against the weight of the evidence (see generally Bleakley, 69NY2d at 495). We further reject the contention of defendant that the 10-year term ofincarceration imposed is unduly harsh and severe, particularly in view of the fact that defendanthas a prior felony conviction and could have been sentenced to as much as a 25-year term ofincarceration. Finally, we have reviewed defendant's remaining contentions and conclude thatthey are without merit. Present—Centra, J.P., Lindley, Sconiers, Green and Gorski, JJ.