| People v Smith |
| 2012 NY Slip Op 05841 [98 AD3d 533] |
| August 1, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Patrick Ricardo Smith, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (William C. Milaccio, Steven A.Bender, and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (DiBella,J.), rendered April 13, 2007, convicting him of robbery in the first degree, robbery in the seconddegree, grand larceny in the second degree, and criminal mischief in the second degree, upon ajury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the indictment was not jurisdictionally defective, asthe counts of the indictment cited the applicable sections of the Penal Law and sufficientlytracked the language thereof to afford the defendant fair notice of the charges against him (seeCPL 200.50 [7] [a]; People vRodriguez, 62 AD3d 728 [2009]; People v Dudley, 289 AD2d 503 [2001]).
The defendant's challenge to the racial composition of the jury panel was waived by hisfailure to make that challenge in writing prior to the selection of the jury (see CPL 270.10[2]; People v Taylor, 82 AD3d1133, 1134 [2011]; People v Messiah, 247 AD2d 490, 491 [1998]; People vBranch, 244 AD2d 562 [1997]; People v Battle, 221 AD2d 648 [1995]). The CountyCourt properly denied the defendant's first Batson challenge (see Batson vKentucky, 476 US 79 [1986]) because the defendant failed to meet his burden ofdemonstrating a prima facie case of discrimination (see People v Booker, 49 AD3d 658, 659 [2008]; People v Severino, 44 AD3d 1077,1078 [2007]; People v Lassiter, 44AD3d 877, 877-878 [2007]; Peoplev London, 38 AD3d 570, 571 [2007]; People v Kennerly, 20 AD3d 491 [2005]). The County Court alsoproperly denied the defendant's second Batson challenge. The County Court'sdetermination that the prosecutor's race-neutral explanation for excluding a prospectiveAfrican-American juror was nonpretextual is entitled to deference on appeal and should not bedisturbed where, as here, it is supported by the record (see People v Hernandez, 75 NY2d350, 356-357 [1990], affd 500 US 352 [1991]; People v Waters, 81 AD3d 673, 673-674 [2011]).
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 of all the crimes beyond a reasonable doubt. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (see CPL470.15 [5]; People v Danielson, 9 NY3d [*2]342 [2007]),we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hearthe 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 verdicts of guilt as to all the crimes wasnot against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The prosecution established a sufficient chain of custody of the forensic evidence recoveredfrom the crime scene, and the prosecution witnesses provided reasonable assurances of theidentity and unchanged condition of the evidence between its recovery and the trial (seePeople v Julian, 41 NY2d 340, 343 [1977]; People v Pearson, 270 AD2d 290,290-291 [2000]; People v Flores-Ossa, 234 AD2d 315 [1996]; People v Leach,203 AD2d 483 [1994]). Any deficiencies in the chain of custody went only to the weight to beaccorded the evidence, not its admissibility (see People v Julian, 41 NY2d at 343; People v Gibson, 28 AD3d 576,576 [2006]; People v Bryant, 302 AD2d 603 [2003]).
There is no merit to the defendant's claim that his alleged exclusion from a number of sidebarbench conferences resulted in a violation of his fundamental right to be present at all materialstages of trial. The record is "insufficient to establish facts necessary to meet the defendant'sburden of showing that he was absent from a material stage of the trial" (People v Velasquez, 1 NY3d 44,49 [2003]; see People v Carter, 44AD3d 677, 678 [2007]; People v Fabricio, 307 AD2d 882, 883 [2003], affd3 NY3d 402 [2004]).
The defendant contends that County Court erred in admitting into evidence a letter that hewrote to a fellow inmate. However, any error in the admission of the letter was harmless, as theevidence of the defendant's guilt, without reference to the error, was overwhelming, and there isno significant probability that the error contributed to the defendant's conviction (see People vCrimmins, 36 NY2d 230, 242 [1975]; People v Sweeney, 92 AD3d 810, 811 [2012]).
The defendant's contention, raised in his pro se supplemental brief, that he was deprived ofthe effective assistance of counsel, is based on matter dehors the record, and cannot be reviewedon direct appeal (see People vMiller, 68 AD3d 1135 [2009]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions, including those contained in his pro se supplementalbrief, are unpreserved for appellate review and, in any event, are without merit. Rivera, J.P.,Florio, Eng and Roman, JJ., concur.