| People v Sanabria |
| 2013 NY Slip Op 06880 [110 AD3d 1010] |
| October 23, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Eric Sanabria, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Middletown, N.Y. (Robert H. Middlemiss ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.), rendered July 13, 2011, convicting him of criminal possession of stolenproperty in the fourth degree (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support hisconvictions is unpreserved for appellate review, as defense counsel made only a generalmotion for a trial order of dismissal based upon the People's alleged failure to make out aprima facie case (see CPL 470.05; People v Hawkins, 11 NY3d 484, 491-492 [2008]; People v Chance, 105 AD3d758, 759 [2013]; People vHill, 72 AD3d 702, 705 [2010]). In any event, viewing the evidence in the lightmost favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]),we find that it was legally sufficient to establish the defendant's guilt beyond a reasonabledoubt. Additionally, in fulfilling our responsibility to conduct an independent review ofthe weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342 [2007]), we nevertheless accord great deference to the factfinder's opportunityto view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; Peoplev Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The defendant's contention that he was deprived of the right to a fair trial by certaincomments made by the prosecutor on summation is unpreserved for appellate review, asthe defendant did not object to the remarks at issue (see CPL 470.05 [2]; People v Kinard, 96 AD3d976 [2012]). In any event, the challenged remarks constituted fair comment on theevidence and the reasonable inferences to be drawn therefrom, or permissible rhetoricalcomment (see People v Ashwal, 39 NY2d 105, 109-110 [1976]; People v Gross, 88 AD3d905, 906 [2011]).
The defendant has failed to establish that he was deprived of the effective assistanceof counsel (see People v Benevento, 91 NY2d 708 [1998]; People vBaldi, 54 NY2d 137 [1981]).[*2]
The defendant's contention that the County Courtfailed to comply with CPL 400.21 before sentencing him as a second felony offender isunpreserved for appellate review (see People v Jackson, 87 AD3d 552, 553-554 [2011]; People v Csoke, 11 AD3d631 [2004]; People v Todd, 306 AD2d 504, 505 [2003]). In any event, theCounty Court substantially complied with the requirements of CPL 400.21 (seePeople v Bouyea, 64 NY2d 1140, 1142 [1985]), and the court's failure to specificallyask the defendant if he wished to controvert the allegations in the predicate felonystatement was harmless, since the defendant admitted the allegations in the statement,there is no indication that the defendant intended to claim that his prior conviction wasunconstitutionally obtained, and he has not alleged any grounds to controvert it (see People v Chase, 101 AD3d1141 [2012]; People vMcAllister, 47 AD3d 731 [2008]; People v Flores, 40 AD3d 876 [2007]). Rivera, J.P., Lott,Sgroi and Miller, JJ., concur.