| People v Boykins |
| 2015 NY Slip Op 09743 [134 AD3d 1542] |
| December 31, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Reginald Boykins, Appellant. |
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of counsel), fordefendant-appellant.
Valerie G. Gardner, District Attorney, Penn Yan (David Mashewske of counsel), forrespondent.
Appeal from a judgment of the Yates County Court (W. Patrick Falvey, J.), renderedJune 10, 2013. The judgment convicted defendant, upon a jury verdict, of criminalpossession of a controlled substance in the third degree and criminal sale of a controlledsubstance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a juryverdict, of criminal possession of a controlled substance in the third degree (Penal Law§ 220.16 [1]), and criminal sale of a controlled substance in the third degree(§ 220.39 [1]). Defendant contends that County Court deprived him of hisconstitutional right to a fair trial by failing to excuse a prospective juror who did notunequivocally assure the court of her impartiality. " 'By failing to raise thatchallenge in the trial court . . . , defendant failed to preserve it for ourreview' " (People vIrvin, 111 AD3d 1294, 1295 [2013], lv denied 24 NY3d 1044 [2014],reconsideration denied 26 NY3d 930 [2015]). "In any event, 'even if defendanthad challenged [that] prospective juror[ ] . . . and his challenge[ ] had merit,[it] nevertheless would not be properly before us because he failed to exhaust hisperemptory challenges prior to the completion of jury selection' " (id.).We reject defendant's related contention that he was denied effective assistance ofcounsel based on defense counsel's alleged failure to challenge the prospective jurorinasmuch as defendant has "failed to show the absence of a strategic explanation" fordefense counsel's decision not to challenge that juror (id. at 1296 [internalquotation marks omitted]). The record does not support defendant's further contentionthat he was denied his right to a jury trial by 12 jurors. Defendant asserts that there wereless than 12 jurors present during the trial on a certain day, but the trial minutes establishthat the Court Clerk stated that "[a]ll Jurors [were] accounted for."
We reject defendant's further contention that reversal is required based upon aRosario violation. " 'Reversal based upon a Rosario violation isnecessary only when a defendant demonstrates that he has been substantiallyprejudiced' " (People vWalters, 124 AD3d 1321, 1323 [2015], lv denied 25 NY3d 1209[2015]), and defendant has not made such a showing here (see id.).
By making only a general motion for a trial order of dismissal, defendant failed topreserve for our review his contention that the evidence is not legally sufficient tosupport his conviction (see People v Gray, 86 NY2d 10, 19 [1995]). In any event,we conclude that the conviction is supported by legally sufficient evidence (seePeople v Bleakley, 69 NY2d 490, 495 [1987]). Contrary to defendant's furthercontention, viewing the evidence in light of the elements of the crimes as charged to thejury (see People vDanielson, 9 NY3d 342, 349 [2007]), we further conclude that the verdict is notagainst the weight of the evidence (see Bleakley, 69 NY2d at 495).
Defendant failed to preserve for our review his contention that, in sentencing him,the court "penalized him for exercising his right to a jury trial" (People v Campbell, 118 AD3d1464, [*2]1466 [2014], lv denied 24 NY3d959 [2014], reconsideration denied 24 NY3d 1218 [2015]). "In any event, [t]hemere fact that a sentence imposed after trial is greater than that offered in connectionwith plea negotiations is not proof that defendant was punished for asserting his right toa trial" (id. [internal quotation marks omitted]).
Contrary to defendant's contention, the sentence is not unduly harsh or severe. "Thecourt properly exercised its discretion when it adjudicated defendant a persistent felonyoffender and sentenced him accordingly" (People v Mason, 277 AD2d 170, 170[2000], lv denied 96 NY2d 785 [2001]). We have examined defendant'sremaining contention and conclude that it lacks merit. Present—Centra, J.P.,Peradotto, Carni, Lindley and DeJoseph, JJ.