| People v Fitzgerald |
| 2011 NY Slip Op 04698 [84 AD3d 1397] |
| May 31, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JahadQ. Fitzgerald, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (Lauren E. Grasso and Andrew R.Kass of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.),rendered January 20, 2010, convicting him of robbery in the first degree (four counts), burglaryin the first degree (two counts), and grand larceny in the fourth degree (three counts), upon a juryverdict, 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 [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]).
Contrary to the defendant's contention, he was not deprived of a fair trial when the CountyCourt permitted the prosecutor to introduce evidence of his flight from the police shortly after thecrimes were committed. After a chase, the defendant was apprehended by the police and thecomplainant's wallet was found to be in his possession. The evidence was relevant to his identityas the perpetrator and his consciousness of guilt, its probative value outweighed the potentialprejudice to the defendant, and the court gave an appropriate limiting instruction (see Peoplev Leeson, 12 NY3d 823, 826-827 [2009]; People v Yazum, 13 NY2d 302, 303-305[1963]; People v Molineux, 168 NY 264, 313-318 [1901]; People v Powell, 107AD2d 718, 719 [1985]).
Contrary to the defendant's contention, the County Court providently exercised its discretionin denying his request for a missing-witness charge based on its finding that the witness was notavailable to the People to testify at trial (see People v Gonzalez, 68 NY2d 424, 428-429[1986]; People v Cintron, 72 AD3d 699 [2010]).[*2]
The defendant's contention regarding the County Court'sSandoval ruling (see People v Sandoval, 34 NY2d 371 [1974]) is unpreserved forappellate review (see CPL 470.05 [2]; People v Grant, 7 NY3d 421, 424 [2006])and, in any event, is without merit.
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Covello, J.P., Chambers, Lott and Miller, JJ., concur.