Opinion
2014-07-2
The PEOPLE, etc., respondent, v. Dujuan R. MARSHALL, appellant.
Bruce A. Petito, Poughkeepsie, N.Y., for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy of counsel), for respondent.
Bruce A. Petito, Poughkeepsie, N.Y., for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Greller, J.), rendered January 11, 2013, convicting him of criminal possession of marijuana in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.
ORDERED that the judgment is affirmed.
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 ( 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;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 County Court properly denied that branch of the defendant's omnibus motion which was to suppress physical evidence ( see People v. Velasquez, 110 A.D.3d 835, 835–836, 972 N.Y.S.2d 678;People v. Martinez, 187 A.D.2d 992, 590 N.Y.S.2d 952).
The defendant's contention that he was deprived of a fair trial due to prosecutorial misconduct is unpreserved for appellate review ( seeCPL 470.05 [2] ) and, in any event, without merit ( see People v. Postell, 45 A.D.3d 609, 610, 845 N.Y.S.2d 397).
Contrary to the defendant's contention, the record, viewed as a whole, demonstrates that he was not deprived of the effective assistance of counsel ( see Strickland v. Washington, 466 U.S. 668, 687–694, 104 S.Ct. 2052, 80 L.Ed.2d 674;People v. Benevento, 91 N.Y.2d 708, 714, 674 N.Y.S.2d 629, 697 N.E.2d 584).
The defendant's contention that the Trial Judge should have recused himself, sua sponte, is unpreserved for appellate review and, in any event, without merit ( see People v. Pearson, 78 A.D.3d 968, 969, 911 N.Y.S.2d 432;People v. Doyle, 15 A.D.3d 674, 675, 791 N.Y.S.2d 583)
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675). RIVERA, J.P., BALKIN, LEVENTHAL and ROMAN, JJ., concur.