| People v Shol |
| 2012 NY Slip Op 07540 [100 AD3d 1461] |
| November 9, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jackson Shol,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), renderedSeptember 1, 2010. The judgment convicted defendant, upon a jury verdict, of burglary in thefirst degree and criminal contempt in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of burglaryin the first degree (Penal Law § 140.30 [3]) and criminal contempt in the first degree(§ 215.51 [b] [vi]), defendant contends that County Court should have granted his motionto dismiss the indictment because the integrity of the grand jury proceeding was impaired. Thatcontention, however, is "not preserved for our review because defendant did not move to dismissthe indictment pursuant to CPL 210.35 (5)" (People v Workman, 277 AD2d 1029, 1031[2000], lv denied 96 NY2d 764 [2001]; see People v Beyor, 272 AD2d 929, 930[2000], lv denied 95 NY2d 832 [2000]; People v Sheltray, 244 AD2d 854, 854[1997], lv denied 91 NY2d 897 [1998]). In any event, defendant's contention lacks merit.A grand jury proceeding is defective when it "fails to conform to the requirements of article onehundred ninety [concerning grand jury proceedings] to such degree that the integrity thereof isimpaired and prejudice to the defendant may result" (CPL 210.35 [5] [some emphasisdeleted]; see People v Darby, 75 NY2d 449, 454 [1990]). Although a "defendant need notdemonstrate actual prejudice under this statutory scheme to prevail" (People v Sayavong,83 NY2d 702, 709 [1994]), " 'dismissal of an indictment under CPL 210.35 (5) must meet a hightest and is limited to instances of prosecutorial misconduct, fraudulent conduct or errors whichpotentially prejudice the ultimate decision reached by the [g]rand [j]ury' " (Sheltray, 244AD2d at 855; see People v Huston, 88 NY2d 400, 409 [1996]). Here, there was no"articulable 'likelihood of' or . . . 'potential for' prejudice" (People v Adessa,89 NY2d 677, 686 [1997]).
The brief reference to a prior incident of domestic violence between defendant and thecomplainant did not impair the integrity of the proceedings or result in potential prejudice todefendant "in light of the overwhelming evidence before the grand jury that he committed thecrimes charged" (People v Ramirez, 298 AD2d 413, 413 [2002], lv denied 99NY2d 563 [2002]; see People v Rivas, 260 AD2d 583, 583-584 [1999], lv denied93 NY2d 1025 [1999]; People v McCreary, 186 AD2d 1070, 1071 [1992], lvdenied 80 NY2d 1028 [1992]). Furthermore, we conclude that the prosecutor conducted an[*2]adequate voir dire of the grand juror who indicated that shewas possibly aware of the prior incident (see e.g. People v Monserrate, 24 Misc 3d1229[A], 2009 NY Slip Op 51665[U], *5-6 [2009]; cf. People v Revette, 48 AD3d 886, 887-888 [2008]).
Although defendant contends that the People failed to establish that he used or threatened touse a dangerous instrument during the commission of the burglary and thus that the evidence islegally insufficient to support the burglary conviction, he "made only a general motion to dismissand thus failed to preserve his contention for our review" (People v Johnson, 43 AD3d 1422, 1422 [2007], lv denied 9NY3d 1035 [2008]; see People v Gray, 86 NY2d 10, 19 [1995]). In any event, theevidence, viewed in the light most favorable to the prosecution (see People v Contes, 60NY2d 620, 621 [1983]), is legally sufficient with respect to the use or threatened use of adangerous instrument. The evidence at trial established that, when defendant broke into thecomplainant's apartment, he possessed a wooden or metal "baseball cue," which he used to"smash[ ]" through various doors in the residence, including a wooden bedroom door. Suchevidence is legally sufficient to establish that the object used by defendant was an "instrument,article or substance . . . which, under the circumstances in which it [was] used. . . or threatened to be used, [was] readily capable of causing death or other seriousphysical injury" (Penal Law § 10.00 [13]; see People v Carter, 53 NY2d 113, 116[1981]; Matter of Shakiea B., 53AD3d 1057, 1059 [2008]; People vGriffin, 24 AD3d 972, 973 [2005], lv denied 6 NY3d 834 [2006]; seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). "Viewing the evidence in light ofthe elements of the crimes as charged to the jury . . . , and affording the appropriatedeference to the jury's credibility determinations . . . , we reject defendant's [further]contention that the verdict is against the weight of the evidence" (People v Miller, 93 AD3d 1305,1305-1306 [2012]; see People vDanielson, 9 NY3d 342, 348-349 [2007]; Bleakley, 69 NY2d at 495).
Finally, we conclude that the sentence is not unduly harsh or severe.Present—Scudder, P.J., Smith, Centra, Lindley and Whalen, JJ.