| People v Totesau |
| 2013 NY Slip Op 08672 [112 AD3d 977] |
| December 26, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Troy Totesau, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Andrea M. DiGregorio andAmes C. Grawert of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Ayres, J.), rendered February 7, 2011, convicting him of robbery in the first degree (twocounts), burglary in the first degree (two counts), robbery in the second degree, attemptedassault in the second degree (four counts), and unlawful imprisonment in the seconddegree (five counts), upon a jury verdict, and imposing sentence. The appeal brings upfor review the denial, after a hearing (Kase, J.), of that branch of the defendant's omnibusmotion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
The defendant's contention that certain physical evidence found by the police insidethe car being driven by the defendant when he was stopped should have been suppressedis without merit.
The defendant's contention that the evidence was legally insufficient to support hisconviction of robbery in the first degree under count one of the indictment and burglaryin the first degree under count six of the indictment, which are both predicated on thetheory that the defendant used or threatened to use a dangerous instrument, isunpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d484, 492 [2008]; People vHira, 100 AD3d 922, 923-924 [2012]; People v Serrano, 74 AD3d 1104, 1105 [2010]). In anyevent, viewing the evidence in the light most favorable to the prosecution (see Peoplev Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of those crimes beyond a reasonable doubt. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (seeCPL 470.15 [5]; People vDanielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to thejury's opportunity to view the witnesses, hear the testimony, and observe demeanor(see People v Mateo, 2 NY3d 383 [2004], cert denied 542 US 946[2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing therecord here, we are satisfied that the verdict of guilt as to those crimes was not againstthe weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
The defendant's contention that the Supreme Court erred in allowing into evidencecertain expert testimony regarding DNA found on a ski mask is unpreserved for appellatereview (see CPL 470.05 [2]; People v Joseph, 97 AD3d 838, 839 [2012]; People v Laigo, 70 AD3d970, 971 [2010]) and, in any event, without merit (see People v Joseph, 97AD3d at 839). Similarly, the defendant's contention that the testimony of several policeofficers improperly bolstered the complainants' identification testimony (see People vTrowbridge, 305 NY 471 [1953]) is unpreserved for appellate review (see Peoplev West, 56 NY2d 662, 663 [1982]; People v Lassiter, 74 AD3d 1094 [2010]; People v Melendez, 51 AD3d1040, 1041 [2008]), and, in any event, without merit (see People v Lassiter,74 AD3d at 1094; People v Moore, 159 AD2d 521, 522 [1990]).
The defendant's contention that various remarks made by the prosecutor during theopening statement and the summation were improper and deprived him of a fair trial isunpreserved for appellate review (see CPL 470.05 [2]). In any event, while someof the comments would have been better left unsaid, the defendant was not deprived of afair trial thereby, and any other error in this regard was harmless in light of theoverwhelming evidence of the defendant's guilt, and the fact that there is no significantprobability that the comments contributed to the defendant's conviction (see People vCrimmins, 36 NY2d 230, 241-242 [1975]).
The defendant's contention that the Supreme Court improperly failed to conduct ahearing to determine the proper amount of restitution is unpreserved for appellate review(see CPL 470.05 [2]; People v Horne, 97 NY2d 404, 414 n 3 [2002]; People v Harris, 72 AD3d1110, 1112-1113 [2010];People v Baez, 52 AD3d 840 [2008]) and, in any event, without merit, since theSupreme Court properly made a finding of the amount of actual loss sustained by thevictims, based upon sufficient evidence in the record (see People v Kim, 91NY2d 407, 410-411 [1998]; People v Harris, 72 AD3d at 1112; People v Lawson, 65 AD3d1380 [2009]; People v Charles, 309 AD2d 873, 874 [2003]). Similarly, thedefendant's contention that the Supreme Court was required to determine his ability topay is unpreserved for appellate review (see CPL 470.05 [2]), and, in any event,without merit (see People v Harris, 72 AD3d at 1112-1113; People v Henry, 64 AD3d804, 807 [2009]).
The defendant's remaining contentions, including the remaining contentions raised inhis supplemental pro se brief, are without merit. Rivera, J.P., Dillon, Chambers andHinds-Radix, JJ., concur.