Opinion
2013-02-13
The PEOPLE, etc., respondent, v. Joseph JONES, appellant.
Lynn W.L. Fahey, New York, N.Y. (Leila Hull of counsel), for appellant. Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Leila Hull of counsel), for appellant. Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.
RUTH C. BALKIN, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.
Appeal by the defendantfrom a judgment of the Supreme Court, Richmond County (Collini, J.), rendered April 6, 2011, convicting him of burglary in the first degree,upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant failed to preserve for appellate review his claim that the evidence was legally insufficient to establish his guilt of burglary in the first degree ( seeCPL 470.05[2]; Penal Law § 140.30[1]; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946;People v. Sweeney, 84 A.D.3d 1123, 1123, 922 N.Y.S.2d 802). In any event, that claim is without merit ( see People v. Sweeney, 84 A.D.3d at 1123, 922 N.Y.S.2d 802).
Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053,cert. denied542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;People v. Bleakley, 69 N.Y.2d 490, 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;People v. Hartman, 64 A.D.3d 1002, 883 N.Y.S.2d 361;People v. Chowdhury, 22 A.D.3d 596, 597, 802 N.Y.S.2d 252;People v. Stoby, 4 A.D.3d 766, 771 N.Y.S.2d 623;People v. Kenward, 266 A.D.2d 155, 699 N.Y.S.2d 35).
The defendant's contention regarding the court's jury charge is not preserved for appellate review ( seeCPL 470.05[2]; see People v. Mestres, 41 A.D.3d 618, 618, 838 N.Y.S.2d 164;cf. People v. Rivera, 78 A.D.3d 1203, 1203, 912 N.Y.S.2d 476), and we decline to review it in the exercise of our interest of justice jurisdiction ( seeCPL 470.15[6][a]; People v. Mestres, 41 A.D.3d at 619, 838 N.Y.S.2d 164;People v. Currella, 296 A.D.2d 578, 578, 746 N.Y.S.2d 30).
Finally, counsel's failure to preserve the claims relating to the legal sufficiency of the evidence and the jury instruction did not, under the circumstances of this case, deprive the defendant of the effective assistance of counsel ( see People v. Turner, 46 A.D.3d 847, 848, 848 N.Y.S.2d 275;cf. People v. Turner, 5 N.Y.3d 476, 480–481, 806 N.Y.S.2d 154, 840 N.E.2d 123;People v. Alford, 33 A.D.3d 1014, 1016, 824 N.Y.S.2d 323).