Opinion
01-11-2017
The PEOPLE, etc., respondent, v. Ishmael CALLISTRO, appellant.
Lynn W.L. Fahey, New York, N.Y. (Mark W. Vorkink of counsel), for appellant, and appellant pro se. Michael E. McMahon, District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Mark W. Vorkink of counsel), for appellant, and appellant pro se.
Michael E. McMahon, District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, and HECTOR D. LaSALLE, JJ.
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 third degree, criminal mischief in the fourth degree (three counts), and unlawful possession of marijuana, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the People failed to adduce legally sufficient evidence to prove his guilt beyond a reasonable doubt is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, viewing the evidence in the light most favorable to the People (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ; People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see People v. Caraballo, 136 A.D.3d 937, 939, 26 N.Y.S.3d 148 ; People v. Torres, 130 A.D.3d 1082, 1085, 14 N.Y.S.3d 151 ; People v. Lindsey, 52 A.D.3d 527, 528, 859 N.Y.S.2d 486 ). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5] ; People v. Romero, 7 N.Y.3d 633, 640–641, 826 N.Y.S.2d 163, 859 N.E.2d 902 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Contrary to the defendant's contention, he was not deprived of the effective assistance of counsel under the Constitution of the State of New York because, in view of the totality of defense counsel's performance, counsel provided meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ). Further, the defendant was not deprived of the effective assistance of counsel under the United States Constitution (see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 ).
The Supreme Court did not err in discharging a sworn juror, as the court properly conducted a thorough inquiry of the juror in the presence of the attorneys and the defendant (see People v. Buford, 69 N.Y.2d 290, 298–299, 514 N.Y.S.2d 191, 506 N.E.2d 901 ) and correctly discharged the juror based on the juror's expressed concerns of distraction and inability to deliberate objectively due to housing and financial issues (see People v. Wells, 63 A.D.3d 967, 968, 882 N.Y.S.2d 150, affd. 15 N.Y.3d 927, 915 N.Y.S.2d 896, 941 N.E.2d 739 ; People v. Daniels, 59 A.D.3d 730, 730, 875 N.Y.S.2d 494 ).
The defendant's challenge to the Supreme Court's instructions to the jury is unpreserved for appellate review, as he failed to request the specific instruction or object to the charge given (see CPL 470.05[2] ; People v. Rivera, 138 A.D.3d 1037, 30 N.Y.S.3d 226 ; People v. Bradford, 137 A.D.3d 928, 25 N.Y.S.3d 902 ). In any event, the charge given to the jury properly stated the applicable legal principles (see CPL 300.10[2] ; People v. Samuels, 99 N.Y.2d 20, 25–26, 750 N.Y.S.2d 828, 780 N.E.2d 513 ; People v. McDonald, 283 A.D.2d 592, 593, 724 N.Y.S.2d 899 ; People v. McMillan, 234 A.D.2d 1006, 652 N.Y.S.2d 918 ). The defendant's contention that the verdict was repugnant is unpreserved for appellate review, as he failed to raise the issue before the discharge of the jury (see People v. Alfaro, 66 N.Y.2d 985, 987, 499 N.Y.S.2d 378, 489 N.E.2d 1280 ; People v. Boley, 116 A.D.3d 965, 966, 983 N.Y.S.2d 830 ). Although the issue was raised in the defendant's CPL 330.30 motion, this was insufficient to preserve the claim for review on appeal (see People v. Boley, 116 A.D.3d at 966, 983 N.Y.S.2d 830 ). In any event, the elements of the assault in the second degree counts, of which the defendant was convicted, were not negated by the disposition of the count of criminal sale of a controlled substance in the third degree because the jury did not return a verdict of not guilty on that count. Rather, the Supreme Court granted the defendant's application to dismiss that count of the indictment (see People v. Brown, 102 A.D.3d 704, 705, 956 N.Y.S.2d 899 ; People v. Granston, 259 A.D.2d 760, 761, 688 N.Y.S.2d 172 ).