Opinion
2010-08773, Ind. No. 08-01614.
04-20-2016
The PEOPLE, etc., respondent, v. Elliot MAY, appellant.
Gary M. Gash, White Plains, N.Y. (Neal D. Futerfas of counsel), for appellant, and appellant pro se. James A. McCarty, Acting District Attorney, White Plains, N.Y. (Adrienne M. Chapoulie, Laurie Sapakoff, and Steven A. Bender of counsel), for respondent.
Gary M. Gash, White Plains, N.Y. (Neal D. Futerfas of counsel), for appellant, and appellant pro se.
James A. McCarty, Acting District Attorney, White Plains, N.Y. (Adrienne M. Chapoulie, Laurie Sapakoff, and Steven A. Bender of counsel), for respondent.
L. PRISCILLA HALL, J.P., SHERI S. ROMAN, HECTOR D. LaSALLE, and BETSY BARROS, JJ.
Opinion Appeal by the defendant from a judgment of the County Court, Westchester County (Cacace, J.), rendered August 10, 2010, convicting him of burglary in the first degree (two counts), assault in the first degree, and attempted bribery of a witness (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the integrity of the grand jury proceeding was impaired by the failure of the prosecution to present certain exculpatory evidence is unpreserved for appellate review (see CPL 470.05[2] ; People v. Brown, 81 N.Y.2d 798, 799, 595 N.Y.S.2d 370, 611 N.E.2d 271 ; People v. Genyard, 84 A.D.3d 1398, 1399, 923 N.Y.S.2d 883 ). In any event, the contention is without merit. The prosecution was under no obligation to present the evidence in question as it was not entirely exculpatory and would not have materially influenced the grand jury's investigation (see People v. Genyard, 84 A.D.3d at 1399, 923 N.Y.S.2d 883 ; People v. Bryan, 50 A.D.3d 1049, 1050, 856 N.Y.S.2d 227 ).
The County Court properly refused to preclude the defendant's January 9, 2008, oral statement to the police pursuant to CPL 710.30(3). Contrary to the defendant's contention, the notice of intention to use the statement at trial that the People served at the time of the defendant's arraignment on a superseding indictment met the requirements of the statute (see People v. Roberts, 110 A.D.3d 1466, 1467, 972 N.Y.S.2d 784 ; People v. Littlejohn, 184 A.D.2d 790, 791, 585 N.Y.S.2d 495 ).
The defendant's contention that the verdict was repugnant is unpreserved for appellate review (see People v. Alfaro, 66 N.Y.2d 985, 987, 499 N.Y.S.2d 378, 489 N.E.2d 1280 ; People v. Satloff, 56 N.Y.2d 745, 746, 452 N.Y.S.2d 12, 437 N.E.2d 271 ) and, in any event, without merit (see People v. DeLee, 24 N.Y.3d 603, 608, 2 N.Y.S.3d 382, 26 N.E.3d 210 ; People v. Muhammad, 17 N.Y.3d 532, 539–540, 935 N.Y.S.2d 526, 959 N.E.2d 463 ).
The defendant's contention that the County Court failed to sufficiently admonish the jurors throughout the course of the trial and during deliberations (see CPL 270.40, 310.10[2] ) is unpreserved for appellate review (see CPL 470.05[2] ; People v. Prince, 128 A.D.3d 987, 987–988, 10 N.Y.S.3d 146 ; People v. Edwards, 69 A.D.3d 755, 891 N.Y.S.2d 661 ). In any event, the contention is without merit, as the court's preliminary instructions and frequent admonitions throughout the trial and before each recess during deliberations, taken together, “adequately conveyed to the jury its function, duties and conduct” (People v. Edwards, 69 A.D.3d at 756, 891 N.Y.S.2d 661 [internal quotation marks omitted]; see People v. Martin, 60 A.D.3d 871, 872, 875 N.Y.S.2d 541 ; People v. Williams, 46 A.D.3d 585, 586, 846 N.Y.S.2d 620 ; People v. Payton, 31 A.D.3d 580, 581, 818 N.Y.S.2d 273 ; People v. Fleming, 270 A.D.2d 498, 706 N.Y.S.2d 340 ).
The defendant's contention that the evidence was legally insufficient to support his convictions of burglary in the first degree (two counts) and assault in the first degree because the prosecution failed to establish his identity as one of the perpetrators is without merit. 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 his identity as one of the perpetrators (see People v. Smith, 135 A.D.3d 970, 23 N.Y.S.3d 391 ; People v. Gilocompo, 125 A.D.3d 1000, 1001, 4 N.Y.S.3d 288 ; People v. Delgado, 109 A.D.3d 483, 970 N.Y.S.2d 84 ). 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, 348–349, 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 on these charges 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 contentions regarding certain comments made by the prosecutor in summation are unpreserved for appellate review, as he either failed to timely object or made only a general objection to the challenged comments (see CPL 470.05[2] ; People v. Wallace, 123 A.D.3d 1151, 1152, 997 N.Y.S.2d 756 ; People v. Rodney, 96 A.D.3d 880, 946 N.Y.S.2d 245 ). In any event, the challenged comments were either not improper (see People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885 ; People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564 ), or not so flagrant or pervasive as to deny the defendant a fair trial (see People v. Wallace, 123 A.D.3d at 1152, 997 N.Y.S.2d 756 ).
The defendant failed to show that he was deprived of a fair trial by receiving less than meaningful representation (see People v. Hobot, 84 N.Y.2d 1021, 1022, 622 N.Y.S.2d 675, 646 N.E.2d 1102 ; People v. Haywood, 124 A.D.3d 798, 801, 2 N.Y.S.3d 164 ).
The County Court improvidently exercised its discretion in denying the defendant's application to introduce an affidavit of his private investigator at a suppression hearing, since defense counsel's representation as to the statements the affidavit contained indicated that it would be noncumulative and material to the issue of the suggestiveness of the police identification procedure in question (cf. People v. Taylor, 80 N.Y.2d 1, 15, 586 N.Y.S.2d 545, 598 N.E.2d 693 ; People v. Burkett, 98 A.D.3d 746, 747, 950 N.Y.S.2d 194 ; People v. White, 79 A.D.3d 1460, 1461, 913 N.Y.S.2d 818 ; People v. Fowler, 61 A.D.3d 698, 876 N.Y.S.2d 498 ). However, the court did afford defense counsel the opportunity to cross-examine the police witness who conducted the identification procedure concerning the relevant allegations in the affidavit. Therefore, under the circumstances of this case, reversal is not required since the defendant was not prejudiced by the error (see People v. Medina, 249 A.D.2d 166, 167, 672 N.Y.S.2d 53 ).
The defendant's challenge to the County Court's Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 ) is unpreserved for appellate review (see People v. Veras, 134 A.D.3d 963, 20 N.Y.S.3d 897 ; People v. Rodriguez, 132 A.D.3d 781, 784, 17 N.Y.S.3d 753 ) and, in any event, without merit (see People v. DeJesus, 135 A.D.3d 872, 22 N.Y.S.3d 601 ; People v. Festus, 133 A.D.3d 876, 877, 21 N.Y.S.3d 278 ; People v. Quezada, 116 A.D.3d 796, 983 N.Y.S.2d 326 ).
The defendant's contention that the County Court's limitation of his cross-examination of certain prosecution witnesses deprived him of his right to present a defense is unpreserved for appellate review (see CPL 470.05[2] ; People v. Caldwell, 115 A.D.3d 870, 982 N.Y.S.2d 356 ). In any event, the court's limitation was a provident exercise of discretion (see People v. Cruz, 131 A.D.3d 706, 707, 15 N.Y.S.3d 692 ; People v. Caldwell, 115 A.D.3d at 870, 982 N.Y.S.2d 356 ; People v. Pena, 113 A.D.3d 701, 702, 978 N.Y.S.2d 693 ).
The defendant's contention that the County Court erred in overruling his objection to a certain remark made by the prosecutor in her opening statement is without merit. The challenged remark was not improper, since it served to introduce the People's theory of the case and was consistent with the evidence they proceeded to present (see People v. Wallace, 123 A.D.3d at 1152, 997 N.Y.S.2d 756 ). The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's contentions, raised in his pro se supplemental brief, regarding his sentencing as a persistent violent felony offender and the admission of alleged hearsay testimony are without merit, and his remaining contentions, including those raised in his pro se supplemental brief, are unpreserved for appellate review and, in any event, without merit.