| People v Sanabria |
| 2013 NY Slip Op 06881 [110 AD3d 1012] |
| 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 attempted burglary in the firstdegree, criminal possession of a weapon in the second degree, and criminal possession ofa weapon in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to establish thathe did not have a license to possess a gun is unpreserved for appellate review because thedefendant failed to move for a trial order of dismissal on that ground (see CPL470.05; People v Lewis, 96AD3d 878 [2012]). In any event, viewing the evidence in the light most favorable tothe prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it waslegally sufficient to establish the defendant's guilt beyond a reasonable doubt of all thecounts of which he was convicted. Additionally, in fulfilling our responsibility toconduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the factfinder'sopportunity to view the witnesses, hear the testimony, and observe demeanor (seePeople 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 NY3d633 [2006]).
The defendant's contention that the trial court improperly permitted the prosecutor tocross-examine him regarding a prior uncharged crime is unpreserved for appellate review(see CPL 470.05 [2]; People v Louis, 99 AD3d 725 [2012]; People vOrtiz, 164 AD2d 872, 873 [1990]). In any event, any error was harmless, as therewas overwhelming evidence of the defendant's guilt and no significant probability thatthe error contributed to his convictions (see People v Grant, 7 NY3d 421, 424-425 [2006];People v Crimmins, 36 NY2d 230, 241-242 [1975]), particularly in light of thetrial court's jury instructions (see People v Rivers, 85 AD3d 826 [2011]; People v Bianchi, 34 AD3d690 [2006]).
The defendant has failed to establish that he was deprived of the effective [*2]assistance of counsel (see People v Benevento, 91NY2d 708 [1998]; People v Baldi, 54 NY2d 137 [1981]).
The defendant's contention that the County Court failed to comply with CPL 400.21before sentencing him as a second felony offender is unpreserved for appellate review(see People v Jackson, 87AD3d 552, 553-554 [2011]; People v Csoke, 11 AD3d 631 [2004]; People vTodd, 306 AD2d 504, 505 [2003]). In any event, the County Court substantiallycomplied with the requirements of CPL 400.21 (see People v Bouyea, 64 NY2d1140, 1142 [1985]), and the court's failure to specifically ask the defendant if he wishedto controvert the allegations in the predicate felony statement was harmless, since thedefendant admitted the allegations in the statement, there is no indication that thedefendant intended to claim that his prior conviction was unconstitutionally obtained,and he has not alleged any grounds to controvert it (see People v Chase, 101 AD3d 1141 [2012]; People v McAllister, 47 AD3d731 [2008]; People vFlores, 40 AD3d 876 [2007]).
The defendant's remaining contention is without merit. Rivera, J.P., Lott, Sgroi andMiller, JJ., concur.