| People v Callistro |
| 2017 NY Slip Op 00177 [146 AD3d 795] |
| January 11, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Ishmael Callistro, Appellant. |
[As corrected by unreported motion dated June 26, 2017, see 2017 NY Slip Op 78252.]
Lynn W.L. Fahey, New York, NY (Mark W. Vorkink of counsel), for appellant, andappellant pro se.
Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart andAnne Grady of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County(Rooney, J.), rendered February 14, 2013, convicting him of assault in the second degree(three counts), reckless endangerment in the first degree, criminal mischief in the thirddegree, criminal mischief in the fourth degree (three counts), and unlawful possession ofmarijuana, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the People failed to adduce legally sufficientevidence to prove his guilt beyond a reasonable doubt is unpreserved for appellatereview (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]). In anyevent, viewing the evidence in the light most favorable to the People (see People v Danielson, 9NY3d 342, 349 [2007]; People v Contes, 60 NY2d 620, 621 [1983]), wefind that it was legally sufficient to establish the defendant's guilt beyond a reasonabledoubt (see People vCaraballo, 136 AD3d 937, 939 [2016]; People v Torres, 130 AD3d 1082, 1085 [2015]; People v Lindsey, 52 AD3d527, 528 [2008]). Moreover, upon the exercise of our factual review power, we aresatisfied that the verdict of guilt was not against the weight of the evidence (seeCPL 470.15 [5]; People vRomero, 7 NY3d 633, 640-641 [2006]; People v Bleakley, 69 NY2d490, 495 [1987]).
Contrary to the defendant's contention, he was not deprived of the effectiveassistance of counsel under the Constitution of the State of New York because, in viewof the totality of defense counsel's performance, counsel provided meaningfulrepresentation (see People v Benevento, 91 NY2d 708, 712 [1998]; People vBaldi, 54 NY2d 137, 147 [1981]). Further, the defendant was not deprived of theeffective assistance of counsel under the United States Constitution (see Strickland vWashington, 466 US 668 [1984]).
The Supreme Court did not err in discharging a sworn juror, as the court properlyconducted a thorough inquiry of the juror in the presence of the attorneys and thedefendant (see People v Buford, 69 NY2d 290, 298-299 [1987]) and correctlydischarged the juror based on the juror's [*2]expressedconcerns of distraction and inability to deliberate objectively due to housing andfinancial issues (see People vWells, 63 AD3d 967, 968 [2009], affd 15 NY3d 927 [2010]; People v Daniels, 59 AD3d730, 730 [2009]).
The defendant's challenge to the Supreme Court's instructions to the jury isunpreserved for appellate review, as he failed to request the specific instruction or objectto the charge given (see CPL 470.05 [2]; People v Rivera, 138 AD3d 1037 [2016]; People v Bradford, 137 AD3d928 [2016]). In any event, the charge given to the jury properly stated the applicablelegal principles (see CPL 300.10 [2]; People v Samuels, 99 NY2d 20,25-26 [2002]; People v McDonald, 283 AD2d 592, 593 [2001]; People vMcMillan, 234 AD2d 1006 [1996]).
The defendant's contention that the verdict was repugnant is unpreserved forappellate review, as he failed to raise the issue before the discharge of the jury (seePeople v Alfaro, 66 NY2d 985, 987 [1985]; People v Boley, 116 AD3d 965, 966 [2014]). Although theissue was raised in the defendant's CPL 330.30 motion, this was insufficient to preservethe claim for review on appeal (see People v Boley, 116 AD3d at 966). In anyevent, the elements of the assault in the second degree counts, of which the defendantwas convicted, were not negated by the disposition of the count of criminal sale of acontrolled substance in the third degree because the jury did not return a verdict of notguilty on that count. Rather, the Supreme Court granted the People's application todismiss that count of the indictment (see People v Brown, 102 AD3d 704, 705 [2013];People v Granston, 259 AD2d 760, 761 [1999]). Rivera, J.P., Chambers, Roman andLaSalle, JJ., concur.