Opinion
04-12-2017
The PEOPLE, etc., respondent, v. Winston COWELL, appellant.
Lynn W.L. Fahey, New York, NY (Mark W. Vorkink of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Daniel Bresnahan, and Deborah E. Wassel of counsel), for respondent.
Lynn W.L. Fahey, New York, NY (Mark W. Vorkink of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Daniel Bresnahan, and Deborah E. Wassel of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, and FRANCESCA E. CONNOLLY, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Gerald, J.), rendered December 12, 2012, convicting him of burglary in the second degree (two counts), criminal mischief in the fourth degree, and petit larceny, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant contends that the evidence supporting his convictions of burglary in the second degree was legally insufficient. Viewing the evidence in the light most favorable to the prosecution (see 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 of those counts beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt as to the counts of burglary in the second degree was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant's contention that he was deprived of the effective assistance of counsel based on his attorney's failure to request a missing witness charge for two police officers who did not testify at trial is without merit. Since there is no evidence that the uncalled witnesses would have provided noncumulative testimony (see People v. Samaroo, 137 A.D.3d 1308, 27 N.Y.S.3d 391 ; People v. Wright, 77 A.D.3d 691, 691, 908 N.Y.S.2d 707 ), such a charge would have been inappropriate under the circumstances. Thus, the failure to request this charge did not deprive the defendant of the effective assistance of counsel (see People v. Salton, 74 A.D.3d 997, 998, 905 N.Y.S.2d 199 ).
The defendant's contention that the trial court's handling of certain jury notes violated the procedure set forth by the Court of Appeals in People v. O'Rama , 78 N.Y.2d 270, 277–278, 574 N.Y.S.2d 159, 579 N.E.2d 189 is unpreserved for appellate review (see CPL 470.05[2] ; People v. Ramirez, 15 N.Y.3d 824, 826, 909 N.Y.S.2d 1, 935 N.E.2d 791 ; People v. Bedeau, 129 A.D.3d 853, 9 N.Y.S.3d 883 ; People v. Santiago, 117 A.D.3d 759, 760, 985 N.Y.S.2d 153 ). Further, the alleged failure to comply with the O'Rama procedure did not constitute a mode of proceedings error which would obviate the preservation requirement (see People v. Mack, 27 N.Y.3d 534, 539, 36 N.Y.S.3d 68, 55 N.E.3d 1041 ; People v. Deokoro, 137 A.D.3d 1297, 1298, 27 N.Y.S.3d 390 ; People v. Santiago, 117 A.D.3d at 760, 985 N.Y.S.2d 153 ; People v. Gerrara, 88 A.D.3d 811, 812, 930 N.Y.S.2d 646 ). In any event, the contention does not require reversal.
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).