| People v May |
| 2016 NY Slip Op 03016 [138 AD3d 1024] |
| April 20, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Elliot May, Appellant. |
Gary M. Gash, White Plains, NY (Neal D. Futerfas of counsel), for appellant, andappellant pro se.
James A. McCarty, Acting District Attorney, White Plains, NY (Adrienne M.Chapoulie, Laurie Sapakoff, and Steven A. Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Cacace, J.), rendered August 10, 2010, convicting him of burglary in the first degree(two counts), assault in the first degree, and attempted bribery of a witness (two counts),upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the integrity of the grand jury proceeding wasimpaired by the failure of the prosecution to present certain exculpatory evidence isunpreserved for appellate review (see CPL 470.05 [2]; People v Brown,81 NY2d 798, 799 [1993]; People v Genyard, 84 AD3d 1398, 1399 [2011]). In anyevent, the contention is without merit. The prosecution was under no obligation topresent the evidence in question as it was not entirely exculpatory and would not havematerially influenced the grand jury's investigation (see People v Genyard, 84AD3d at 1399; People vBryan, 50 AD3d 1049, 1050 [2008]).
The County Court properly refused to preclude the defendant's January 9, 2008, oralstatement to the police pursuant to CPL 710.30 (3). Contrary to the defendant'scontention, the notice of intention to use the statement at trial that the People served atthe time of the defendant's arraignment on a superseding indictment met the requirementsof the statute (see People vRoberts, 110 AD3d 1466, 1467 [2013]; People v Littlejohn, 184 AD2d790, 791 [1992]).
The defendant's contention that the verdict was repugnant is unpreserved forappellate review (see People v Alfaro, 66 NY2d 985, 987 [1985]; People vSatloff, 56 NY2d 745, 746 [1982]) and, in any event, without merit (see People v DeLee, 24 NY3d603, 608 [2014]; People vMuhammad, 17 NY3d 532, 539-540 [2011]).
The defendant's contention that the County Court failed to sufficiently admonish thejurors throughout the course of the trial and during deliberations (see CPL270.40, 310.10 [2]) is unpreserved for appellate review (see CPL 470.05 [2]; People v Prince, 128 AD3d987, 987-988 [2015];People v Edwards, 69 AD3d 755 [2010]). In any event, the contention iswithout merit, as the court's [*2]preliminary instructionsand frequent admonitions throughout the trial and before each recess duringdeliberations, taken together, "adequately conveyed to the jury its function, duties andconduct" (People v Edwards, 69 AD3d at 756 [internal quotation marks omitted];see People v Martin, 60AD3d 871, 872 [2009]; People v Williams, 46 AD3d 585, 586 [2007]; People v Payton, 31 AD3d580, 581 [2006]; People v Fleming, 270 AD2d 498 [2000]).
The defendant's contention that the evidence was legally insufficient to support hisconvictions of burglary in the first degree (two counts) and assault in the first degreebecause the prosecution failed to establish his identity as one of the perpetrators iswithout merit. Viewing the evidence in the light most favorable to the prosecution(see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legallysufficient to establish his identity as one of the perpetrators (see People v Smith, 135 AD3d970 [2016]; People vGilocompo, 125 AD3d 1000, 1001 [2015]; People v Delgado, 109 AD3d 483 [2013]). Moreover, infulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), wenevertheless accord great deference to the jury's opportunity to view the witnesses, hearthe testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410[2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing therecord here, we are satisfied that the verdict on these charges was not against the weightof the evidence (see People vRomero, 7 NY3d 633 [2006]).
The defendant's contentions regarding certain comments made by the prosecutor insummation are unpreserved for appellate review, as he either failed to timely object ormade only a general objection to the challenged comments (see CPL 470.05 [2];People v Wallace, 123AD3d 1151, 1152 [2014]; People v Rodney, 96 AD3d 880 [2012]). In any event, thechallenged comments were either not improper (see People v Galloway, 54 NY2d396, 399 [1981]; People v Ashwal, 39 NY2d 105, 109-110 [1976]), or not soflagrant or pervasive as to deny the defendant a fair trial (see People v Wallace,123 AD3d at 1152).
The defendant failed to show that he was deprived of a fair trial by receiving lessthan meaningful representation (see People v Hobot, 84 NY2d 1021, 1022[1995]; People v Haywood,124 AD3d 798, 801 [2015]).
The County Court improvidently exercised its discretion in denying the defendant'sapplication to introduce an affidavit of his private investigator at a suppression hearing,since defense counsel's representation as to the statements the affidavit containedindicated that it would be noncumulative and material to the issue of the suggestivenessof the police identification procedure in question (cf. People v Taylor, 80 NY2d1, 15 [1992]; People vBurkett, 98 AD3d 746, 747 [2012]; People v White, 79 AD3d 1460, 1461 [2010]; People v Fowler, 61 AD3d698 [2009]). However, the court did afford defense counsel the opportunity tocross-examine the police witness who conducted the identification procedure concerningthe relevant allegations in the affidavit. Therefore, under the circumstances of this case,reversal is not required since the defendant was not prejudiced by the error (seePeople v Medina, 249 AD2d 166, 167 [1998]).
The defendant's challenge to the County Court's Sandoval ruling (seePeople v Sandoval, 34 NY2d 371 [1974]) is unpreserved for appellate review (see People v Veras, 134 AD3d963 [2015]; People vRodriguez, 132 AD3d 781, 784 [2015]) and, in any event, without merit (see People v DeJesus, 135AD3d 872 [2016]; People vFestus, 133 AD3d 876, 877 [2015]; People v Quezada, 116 AD3d 796 [2014]).
The defendant's contention that the County Court's limitation of hiscross-examination of certain prosecution witnesses deprived him of his right to present adefense is unpreserved for appellate review (see CPL 470.05 [2]; People v Caldwell, 115 AD3d870 [2014]). In any event, the court's limitation was a provident exercise ofdiscretion (see People vCruz, 131 AD3d 706, 707 [2015]; People v Caldwell, 115 AD3d at 870;People v Pena, 113 AD3d701, 702 [2014]).
The defendant's contention that the County Court erred in overruling his objection toa certain remark made by the prosecutor in her opening statement is without merit. Thechallenged remark was not improper, since it served to introduce the People's theory ofthe case and was consistent with the evidence they proceeded to present (see People vWallace, 123 AD3d at [*3]1152).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's contentions, raised in his pro se supplemental brief, regarding hissentencing as a persistent violent felony offender and the admission of alleged hearsaytestimony are without merit, and his remaining contentions, including those raised in hispro se supplemental brief, are unpreserved for appellate review and, in any event,without merit. Hall, J.P., Roman, LaSalle and Barros, JJ., concur.