| People v Johnson |
| 2011 NY Slip Op 03632 [83 AD3d 1094] |
| April 26, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v VictorJohnson, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Yael V. Levy and Donald Berk ofcounsel; Victoria Rosner on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Calabrese,J.), rendered December 12, 2008, convicting him of course of sexual conduct against a child inthe first degree and endangering the welfare of a child, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant's contention that the count in the indictment charging him with course ofsexual conduct against a child in the first degree was duplicitous is unpreserved for appellatereview (see CPL 470.05 [2]), as the defendant failed to make a pretrial motion to dismissthat count of the indictment within 45 days of his arraignment (see CPL 210.20 [1], [2];People v Iannone, 45 NY2d 589, 600 [1978]; People v Nash, 77 AD3d 687[2010]; People v Booker, 63 AD3d 750 [2009]). In any event, the defendant's contentionis without merit (see People v Keindl, 68 NY2d 410 [1986]; People v Palmer, 7AD3d 472 [2004]).
The defendant claims that the Supreme Court improvidently exercised its discretion indischarging Juror Three, and that the court failed to conduct a sufficient inquiry before doing so.Insofar as the defendant claims that the Supreme Court failed to conduct a sufficiently probingand tactful inquiry of Juror Three as required by People v Buford (69 NY2d 290 [1987]),his contention is unpreserved for appellate review (see CPL 470.05 [2]), as he "neitherinformed the court that its questioning was insufficient or objectionable, nor suggested additionalavenues of inquiry or requested that other jurors be questioned" (People v Hicks, 6 NY3d737, 739 [2005]). In any event, CPL 270.35 (1) provides that "[i]f at any time after the trial juryhas been sworn and before the rendition of its verdict . . . the court finds, from factsunknown at the time of the selection of the jury, that a juror is grossly unqualified to serve in thecase or has engaged in misconduct of a substantial nature . . . the court mustdischarge such juror." The "grossly unqualified" standard "is satisfied only when it becomesobvious that a particular juror possesses a state of mind which would prevent the rendering of animpartial verdict" (People v Porter, 77 AD3d 771, 772 [2010], quoting People vBuford, 69 NY2d at 298 [internal quotation marks omitted]; see People v Arena, 70AD3d 1044, 1045 [2010]; People v Lawrence, 303 AD2d 603, 604 [2003]). In makingsuch a determination, "the trial court must question each allegedly unqualified juror individuallyin camera in the presence of the attorneys and defendant" (People v Buford, 69 NY2d at299), conducting "a 'probing and tactful inquiry' into the 'unique facts' of each case, including acareful consideration of the juror's 'answers and demeanor' " (People v Rodriguez, 71NY2d 214, 219 [1988], quoting People v Buford, 69 NY2d at 299). Contrary to thedefendant's contention, the Supreme Court conducted a sufficiently probing and [*2]tactful inquiry, and did not improvidently exercise its discretion indischarging Juror Three as "grossly unqualified."
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [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 vDanielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the jury'sopportunity to view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied thatthe verdict of guilt was not against the weight of the evidence (see People v Romero, 7NY3d 633 [2006]).
The defendant is correct that the Supreme Court should have redacted certain statementsmade by the complainant's father during a telephone conversation with the defendant that wasrecorded by police with the cooperation of the complainant's father. However, the error in failingto do so was harmless, as there was overwhelming evidence of the defendant's guilt, and nosignificant probability that the error contributed to his conviction (see People vCrimmins, 36 NY2d 230, 241-242 [1975]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions are without merit. Covello, J.P., Angiolillo,Dickerson and Hall, JJ., concur.