| People v Astacio |
| 2013 NY Slip Op 02900 [105 AD3d 1394] |
| April 26, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vRoberto A. Astacio, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Erin Tubbs of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Roy W. King, A.J.), renderedNovember 2, 2006. The judgment convicted defendant, upon a jury verdict, of burglaryin the first degree, assault in the first degree and robbery in the second degree (twocounts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of, inter alia, burglary in the first degree (Penal Law § 140.30 [2]) andassault in the first degree (§ 120.10 [4]). To the extent defendant challenges thelegal sufficiency of the evidence supporting the conviction of assault in the first degree,that contention is not preserved for our review (see People v Hines, 97 NY2d 56,61 [2001], rearg denied 97 NY2d 678 [2001]) and, in any event, lacks merit(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Additionally,viewing the evidence in light of the elements of the crimes of burglary in the first degreeand assault in the first degree as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), wereject defendant's contention that the verdict with respect to those crimes is against theweight of the evidence (see generally Bleakley, 69 NY2d at 495). The evidenceestablishes that defendant's actions were a "sufficiently direct cause" of the injuries to therelevant victim (People v Petrosino, 299 AD2d 851, 852 [2002], lvdenied 99 NY2d 618 [2003] [internal quotation marks omitted]; see People vDarrow, 260 AD2d 928, 929 [1999]; see generally People v Stewart, 40NY2d 692, 697 [1976]). Moreover, "[r]esolution of issues of credibility, as well as theweight to be accorded to the evidence presented, are primarily questions to be determinedby the jury" (People vWitherspoon, 66 AD3d 1456, 1457 [2009], lv denied 13 NY3d 942[2010] [internal quotation marks omitted]). Defendant contends that the assault in thefirst degree count in the indictment of which he was convicted is duplicitous. Thatcontention is not preserved for our review (see People v Sponburgh, 61 AD3d 1415, 1416 [2009],lv denied 12 NY3d 929 [2009]), and we decline to exercise our power to reviewit as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
Defendant's contention that the People committed a Brady violation is alsonot preserved for our review (see People v Jacobs, 71 AD3d 693, 693 [2010], lvdenied 14 NY3d 888 [2010]; People v Caswell, 56 AD3d 1300, 1303 [2008], lvdenied 11 NY3d 923 [2009], reconsideration denied 12 NY3d 781 [2009])[*2]and, in any event, lacks merit (see People v Griffin, 48 AD3d894, 895 [2008], lv denied 10 NY3d 959 [2008]; see also People v Dizak, 93AD3d 1182, 1184 [2012], lv denied 19 NY3d 972 [2012],reconsideration denied 20 NY3d 932 [2012]). Moreover, "a defendant'sconstitutional right to a fair trial is not violated when, as here, he is given a meaningfulopportunity to use the allegedly exculpatory material to cross-examine the People'switnesses or as evidence during his case" (People v Morrison, 90 AD3d 1554, 1555 [2011], lvdenied 19 NY3d 1028 [2012], reconsideration denied 20 NY3d 934 [2012][internal quotation marks omitted]). Contrary to defendant's further contention, there wasno error under People v Trowbridge (305 NY 471 [1953]), which restrictsthird-party testimony regarding an eyewitness's pretrial identification of adefendant, because here the eyewitness herself testified as to her identification ofdefendant (see People vThomas, 17 NY3d 923, 926 [2011]; People v Bolden, 58 NY2d 741,742-743 [1982]).
Defendant failed to preserve for our review his contention that County Court erred indischarging a sworn juror and, contrary to defendant's contention, preservation isrequired inasmuch as the court's alleged error is not a mode of proceedings error (see People v Powell, 79 AD3d1791, 1792 [2010], lv denied 17 NY3d 799 [2011]; see also People v Kelly, 5NY3d 116, 119-120 [2005]). In any event, defendant's contention regarding thealleged error in discharging that juror lacks merit inasmuch as the court properlydischarged the juror from service pursuant to CPL 270.35 (see People v Washington, 50AD3d 1539, 1540 [2008], lv denied 11 NY3d 742 [2008]; see alsoPeople v Jeanty, 94 NY2d 507, 516-517 [2000], rearg denied 95 NY2d 849[2000]; People v Forino, 65AD3d 1259, 1260 [2009], lv denied 13 NY3d 907 [2009]).
Defendant also did not preserve for our review his contention that the court erred infailing to discharge a sworn juror (see People v Dennis, 91 AD3d 1277, 1279 [2012], lvdenied 19 NY3d 995 [2012]), and we reject his contention that the court's allegederror is a mode of proceedings error for which preservation is not required (seePowell, 79 AD3d at 1792, citing Kelly, 5 NY3d at 119-120). In any event,defendant's contention lacks merit (see Dennis, 91 AD3d at 1279; seegenerally People v Buford, 69 NY2d 290, 298 [1987]).
Assuming, arguendo, that defendant preserved for our review his contention that thetestimony of a police investigator violated defendant's constitutional right ofconfrontation (see generally Crawford v Washington, 541 US 36, 53-54 [2004]),we conclude that the statements at issue were "testimonial" and thus violated his right ofconfrontation (see Morrison, 90 AD3d at 1556). Nevertheless, we conclude thatthe error is harmless. " 'Trial errors resulting in violation of a criminal defendant's SixthAmendment right to confrontation "are considered harmless when, in light of the totalityof the evidence, there is no reasonable possibility that the error affected the jury'sverdict" ' " (id. at 1557, quoting People v Porco, 17 NY3d 877, 878[2011], cert denied 566 US —, 132 S Ct 1860 [2012]). Here, the evidenceof guilt was overwhelming inasmuch as it included testimony from several eyewitnesses,as well as a statement defendant gave linking himself to the crimes, and there was noreasonable possibility that the error affected the jury's verdict (see generally People vCrimmins, 36 NY2d 230, 237 [1975]).
To the extent that defendant's additional contention that he was denied a fair trial byprosecutorial misconduct is preserved for our review (see CPL 470.05 [2]), it iswithout merit. The alleged misconduct was "not so egregious as to deprive defendant of afair trial" (People vWittman, 103 AD3d 1206, 1207 [2013]). Finally, viewing the evidence, the law,and the circumstances of this case in totality and at the time of representation, weconclude that defense counsel provided meaningful representation (see generallyPeople v Baldi, 54 NY2d 137, 147 [1981]). Present—Centra, J.P., Fahey,Carni, Sconiers and Martoche, JJ.