| People v Herschman |
| 2014 NY Slip Op 05352 [119 AD3d 813] |
| July 16, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 The People of the State of New York,Respondent, v Zvi Herschman, Appellant. |
Mischel & Horn, P.C., New York, N.Y. (Richard W. Mischel of counsel), forappellant.
Kathleen M. Rice, District Attorney, Mineola, N.Y. (Judith R. Sternberg and CristinN. Connell of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Kase, J.), rendered July 30, 2012, convicting him of grand larceny in the second degree,upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's challenge to the legal sufficiency of the evidence supporting hisconviction is unpreserved for appellate review (see People v Hawkins, 11 NY3d 484, 492 [2008]; CPL470.05 [2]). In any event, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it waslegally sufficient to establish the defendant's guilt beyond a reasonable doubt.
Moreover, in fulfilling our responsibility to conduct an independent review of theweight of the evidence (seePeople v Danielson, 9 NY3d 342, 348 [2007]), we nevertheless accord greatdeference to the factfinder's opportunity to view the witnesses, hear the testimony, andobserve demeanor (see People v Mateo, 2 NY3d 383 [2004]; People vBleakley, 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 did not preserve for appellate review his present contention that theSupreme Court should have charged the jury that the guilty plea of his employee JeroldLevoritz was not to be considered as evidence of the defendant's guilt (see CPL470.05 [2]; People v Aleschus, 55 NY2d 775 [1981]; People v Mendoza,298 AD2d 532 [2002]). In any event, any error in not giving the charge (see People vColascione, 22 NY2d 65, 73 [1968]; People v Weinberg, 183 AD2d 932, 934[1992]; United States v Prawl, 168 F3d 622, 626 [2d Cir 1999]), was harmless, asthere was overwhelming evidence of the defendant's guilt and no "significant probability. . . that the jury would have acquitted the defendant had it not been for theerror" (People v Gillyard,13 NY3d 351, 356 [2009], quoting People v Crimmins, 36 NY2d 230,241-242 [1975]; People v Weinberg, 183 AD2d at 934).
Similarly unpreserved for appellate review is the defendant's related contention that[*2]the Supreme Court gave an unbalanced interestedwitness charge by failing to charge that Levoritz was an interested witness whilecharging that the defendant was an interested witness (see CPL 470.05 [2]; People v Dees, 45 AD3d602, 603 [2007]). In any event, this contention is without merit. The charge wasproperly balanced, as the court instructed the jury that it was free to find that anywitnesses, including the prosecution's witnesses, were interested (see People v Newman, 107AD3d 827, 828-829 [2013]; People v Dees, 45 AD3d at 603; see Peoplev Inniss, 83 NY2d 653, 659 [1994]; 1 CJI[NY] 7.03 at 269).
The defendant's remaining contentions are without merit (see People v Marino, 99 AD3d726, 730 [2012]; Matter ofAnthony P., 48 AD3d 573 [2008]; People v Farner, 234 AD2d 561, 562[1996]). Skelos, J.P., Dickerson, Cohen and Duffy, JJ., concur.