| People v Glover |
| 2012 NY Slip Op 04361 [96 AD3d 777] |
| June 6, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Luther Glover, Jr., Appellant. |
—[*1]
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas C. Costello of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Braslow, J.),rendered November 10, 2010, convicting him of burglary in the third degree, upon a jury verdict,and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that the County Court erred by permitting him to be shackled duringthe trial without justification (see Deck v Missouri, 544 US 622, 630 [2005]). Indeed, theCounty Court did not articulate on the record any reason, security-related or otherwise, for whythe defendant was shackled, and it is unclear from the record whether the shackles were visible tothe jury (see People v Tedesco, 143 AD2d 155, 159 [1988]). However, the defendant'scontention is not preserved for appellate review. In any event, to the extent that the defendantargues that the County Court erred in this regard as a matter of federal constitutional law, wefind, beyond a reasonable doubt, that any such error did "not contribute to the verdict obtained,"and, thus, constituted harmless error (Deck v Missouri, 544 US at 635 [internal quotationmarks omitted]). Similarly, insofar as the claim is made pursuant to state constitutional law, theresult is the same, since the evidence of the defendant's guilt, without reference to the allegederror, was overwhelming, and there is no reasonable possibility that the alleged error might havecontributed to the defendant's conviction (see People v Clyde, 18 NY3d 145 [2011], cert denied 566US —, 2012 WL 485961, 2012 US LEXIS 3006 [2012]; People v Crimmins, 36NY2d 230, 237 [1975]; cf. People vCruz, 17 NY3d 941 [2011]).
The defendant claims that his right to be present at sidebar conferences, pursuant toPeople v Antommarchi (80 NY2d 247 [1992]), was violated when he was excluded froma conference requested by a potential juror, and that the trial court coerced him into waiving hisright thereto. However, this claim is unpreserved for appellate review since he made no objectionat trial (see People v King, 234 AD2d 391, 391 [1996]). In any event, the contention hasno merit, since the defendant, having been apprised of the reasons for precluding his appearanceat the sidebar conference, and having discussed the matter with his counsel, expressly waived hisright knowingly, intelligently, and voluntarily (see People v Vargas, 88 NY2d 363,375-378 [1996]; People v King, 234 AD2d 391, 392 [1996]).
Contrary to the defendant's contention, the County Court did not err in refusing to charge thejury on the elements of criminal trespass in the third degree as a lesser included offense ofburglary in the third degree. Viewed in the light most favorable to the defendant, there is noreasonable view of the evidence that would support a finding that the defendant committedcriminal trespass in the third degree but did not commit burglary in the third degree (seeCPL 300.50 [1]; [*2]People v Glover, 57 NY2d 61,64 [1982]; People v Henderson, 41 NY2d 233, 235 [1976]). Although the jury was freeto accept or reject part or all of the defense or prosecution evidence (see People vHenderson, 41 NY2d at 236), it may not arbitrarily or irrationally dissect the integratedtestimony of a single witness (see People v Alford, 276 AD2d 797, 799 [2000]). Here,the jury would have had to dissect the defendant's testimony in just such an impermissiblemanner in order to have found both that the defendant did not have permission to enter thesubject building, but did have permission to take the items he admitted to taking. Thus, theCounty Court properly refused to charge the jury on the offense of criminal trespass in the thirddegree.
Contrary to defendant's contention, his motion pursuant to CPL 330.30, in which he claimeda violation of Brady v Maryland (373 US 83 [1963]), was properly denied by the CountyCourt (see People v Fuentes, 12NY3d 259, 263 [2009]).
Moreover, in fulfilling our responsibility to conduct an independent review of the weight ofthe evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (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 not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The defendant's contention that certain comments made by the prosecutor during summationdeprived him of a fair trial is unpreserved for appellate review and, in any event, without merit.
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions are without merit. Dillon, J.P., Dickerson, Hall andSgroi, JJ., concur.