Opinion
414 KA 19-00672
04-29-2022
The PEOPLE of the State of New York, Respondent, v. Roberto LEON, Defendant-Appellant.
LAW OFFICE OF NELSON S. TORRE, BUFFALO (NELSON S. TORRE OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
LAW OFFICE OF NELSON S. TORRE, BUFFALO (NELSON S. TORRE OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, NEMOYER, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree ( Penal Law § 125.25 [1] ) and criminal possession of a weapon in the second degree (§ 265.03 [3]). Contrary to defendant's contention, we conclude that Supreme Court did not err in discharging a juror over his objection. The trial court is generally "accorded latitude in making the findings necessary to determine whether a juror is grossly unqualified under CPL 270.35" ( People v. Rodriguez , 71 N.Y.2d 214, 219, 524 N.Y.S.2d 422, 519 N.E.2d 333 [1988] ), and " ‘[a] determination whether a juror is ... grossly unqualified, and subsequently to discharge such a juror, is left to the broad discretion of the court’ " ( People v. Jean-Philippe , 101 A.D.3d 1582, 1582, 956 N.Y.S.2d 709 [4th Dept. 2012] ). Here, upon the court's " ‘probing and tactful inquiry’ into the facts of the situation" ( People v. Harris , 99 N.Y.2d 202, 213, 753 N.Y.S.2d 437, 783 N.E.2d 502 [2002] ), the juror admitted that he recognized a spectator in the courtroom from certain drug activity of the juror's friend, a bartender, and that he knew the spectator was part of a group who would come into the bar to compel the juror's friend to pay money he owed for drugs. The juror admitted that he was worried about the possibility of encountering the spectator after a guilty verdict and was concerned for the safety of his family. Recognizing that "[t]he decision to disqualify turns on the facts of each particular case, and according deference to the court's evaluation of the juror's answers and demeanor," we perceive no basis to disturb the court's determination ( People v. Abdul-Jaleel , 142 A.D.3d 1296, 1297, 38 N.Y.S.3d 645 [4th Dept. 2016], lv denied 29 N.Y.3d 946, 54 N.Y.S.3d 377, 76 N.E.3d 1080 [2017] [internal quotation marks omitted]; see People v. Ocasio , 258 A.D.2d 303, 303-304, 685 N.Y.S.2d 184 [1st Dept. 1999], lv denied 93 N.Y.2d 975, 695 N.Y.S.2d 61, 716 N.E.2d 1106 [1999] ).
Defendant further contends that the conviction is not supported by legally sufficient evidence and that the verdict is against the weight of the evidence. "Viewing the evidence in the light most favorable to the People, and giving them the benefit of every reasonable inference" ( People v. Bay , 67 N.Y.2d 787, 788, 501 N.Y.S.2d 19, 492 N.E.2d 127 [1986] ; see People v. Delamota , 18 N.Y.3d 107, 113, 936 N.Y.S.2d 614, 960 N.E.2d 383 [2011] ), we conclude that the evidence is legally sufficient to support the conviction (see People v. Butler , 140 A.D.3d 1610, 1610-1611, 33 N.Y.S.3d 602 [4th Dept. 2016], lv denied 28 N.Y.3d 969, 43 N.Y.S.3d 257, 66 N.E.3d 3 [2016] ; see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Furthermore, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ) and according deference to the jury's credibility determinations (see People v. Romero , 7 N.Y.3d 633, 645, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] ), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Defendant failed to preserve for our review his challenge to the admission in evidence of testimony that defendant made a threatening gesture toward a witness after the crime (see generally People v. Reibel , 181 A.D.3d 1268, 1269, 119 N.Y.S.3d 659 [4th Dept. 2020], lv denied 35 N.Y.3d 1029, 126 N.Y.S.3d 22, 149 N.E.3d 860 [2020], reconsideration denied 35 N.Y.3d 1096, 131 N.Y.S.3d 289, 155 N.E.3d 782 [2020] ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ). We reject defendant's further contention that the court erred in admitting in evidence, under the excited utterance exception to the hearsay rule, statements made by an eyewitness seconds after the murder (see People v. Monroe , 39 A.D.3d 1279, 1280, 833 N.Y.S.2d 832 [4th Dept. 2007], lv denied 9 N.Y.3d 867, 840 N.Y.S.2d 897, 872 N.E.2d 1203 [2007] ).
Finally, we conclude the sentence is not unduly harsh or severe.