| People v Auguste |
| 2017 NY Slip Op 04451 [151 AD3d 734] |
| June 7, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Nadege Auguste, Appellant. |
Mark Diamond, New York, NY, for appellant.
Eric T. Schneiderman, Attorney General, New York, NY (Nikki Kowalski and Hannah StithLong of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldberg,J.), rendered November 17, 2014, convicting her of scheme to defraud in the first degree andgrand larceny in the third degree (eight counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the prosecution established by a preponderance of theevidence that venue was proper in Kings County (see CPL 20.40 [1]; People vGreenberg, 89 NY2d 553, 555-556 [1997]; People v Ribowsky, 77 NY2d 284,291-292 [1991]).
The defendant's contention that the evidence supporting her convictions was legallyinsufficient is partially unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484,492 [2008]). In any event, 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 legally sufficient toestablish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (see CPL470.15 [5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe their demeanor (see People v Mateo, 2NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewingthe record, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The defendant's contention that the Supreme Court improperly discharged a sworn juror andreplaced her with an alternate is also without merit. The court conducted a reasonably thoroughinquiry into the juror's unavailability and providently exercised its discretion in replacing thejuror after determining that the juror would not appear within the two-hour period set forth inCPL 270.35 (2) (see People v Jeanty, 94 NY2d 507 [2000]). The defendant's claimregarding the constitutionality of the discharge of the juror is unpreserved for appellate review(see People v Angelo, 88 NY2d 217, 222 [1996]; People v Ballard, 51 AD3d 1034, 1035-1036 [2008]) and, in anyevent, without merit (see People v Jeanty, 94 NY2d at 517; People v Ballard, 51AD3d at 1036).
[*2] Contrary to the defendant'scontentions, the Supreme Court properly denied, without a hearing, that branch of her motionwhich was to set aside the verdict pursuant to CPL 330.30 (2), based upon alleged jurormisconduct (see CPL 330.40 [2] [e]; People v Gerrara, 88 AD3d 811, 813-814 [2011]; People v BabLin You, 264 AD2d 780, 780 [1999]; People v Cervantes, 242 AD2d 730, 731[1997]). Leventhal, J.P., Hinds-Radix, LaSalle and Brathwaite Nelson, JJ., concur. [PriorCase History: 45 Misc 3d 1215(A), 2014 NY Slip Op 51597(U).]