Opinion
2014-07-16
The PEOPLE, etc., respondent, v. Zvi HERSCHMAN, appellant.
Mischel & Horn, P.C., New York, N.Y. (Richard W. Mischel of counsel), for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Judith R. Sternberg and Cristin N. Connell of counsel), for respondent.
Mischel & Horn, P.C., New York, N.Y. (Richard W. Mischel of counsel), for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Judith R. Sternberg and Cristin N. Connell of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Kase, J.), rendered July 30, 2012, convicting him of grand larceny in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's challenge to the legal sufficiency of the evidence supporting his conviction is unpreserved for appellate review ( see People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946;CPL 470.05[2] ). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 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.
Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see 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 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 did not preserve for appellate review his present contention that the Supreme Court should have charged the jury that the guilty plea of his employee Jerold Levoritz was not to be considered as evidence of the defendant's guilt ( seeCPL 470.05[2]; People v. Aleschus, 55 N.Y.2d 775, 447 N.Y.S.2d 243, 431 N.E.2d 968;People v. Mendoza, 298 A.D.2d 532, 748 N.Y.S.2d 665). In any event, any error in not giving the charge ( see People v. Colascione, 22 N.Y.2d 65, 73, 291 N.Y.S.2d 289, 238 N.E.2d 699;People v. Weinberg, 183 A.D.2d 932, 934, 586 N.Y.S.2d 132;United States v. Prawl, 168 F.3d 622, 626 [2d Cir.1999] ), was harmless, as there was overwhelming evidence of the defendant's guilt and no “significant probability ... that the jury would have acquitted the defendant had it not been for the error” ( People v. Gillyard, 13 N.Y.3d 351, 356, 892 N.Y.S.2d 288, 920 N.E.2d 344, quoting People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787;People v. Weinberg, 183 A.D.2d at 934, 586 N.Y.S.2d 132).
Similarly unpreserved for appellate review is the defendant's related contention that the Supreme Court gave an unbalanced interested witness charge by failing to charge that Levoritz was an interested witness while charging that the defendant was an interested witness ( seeCPL 470.05[2]; People v. Dees, 45 A.D.3d 602, 603, 845 N.Y.S.2d 115). In any event, this contention is without merit. The charge was properly balanced, as the court instructed the jury that it was free to find that any witnesses, including the prosecution's witnesses, were interested ( see People v. Newman, 107 A.D.3d 827, 828–829, 967 N.Y.S.2d 122;People v. Dees, 45 A.D.3d at 603, 845 N.Y.S.2d 115;see People v. Inniss, 83 N.Y.2d 653, 659, 612 N.Y.S.2d 360, 634 N.E.2d 961; 1 CJI [N.Y.] 7.03 at 269).
The defendant's remaining contentions are without merit ( see People v. Marino, 99 A.D.3d 726, 730, 951 N.Y.S.2d 740;Matter of Anthony P., 48 A.D.3d 573, 849 N.Y.S.2d 910;People v. Farner, 234 A.D.2d 561, 562, 652 N.Y.S.2d 613). SKELOS, J.P., DICKERSON, COHEN and DUFFY, JJ., concur.