Opinion
KA 01-01457
December 30, 2002.
Appeal from a judgment of Wayne County Court (Kehoe, J.), entered April 3, 2001, convicting defendant after a jury trial of, inter alia, burglary in the first degree (two counts).
JOHN E. TYO, SHORTSVILLE, FOR DEFENDANT-APPELLANT.
BRYON K. RUSS, DEFENDANT-APPELLANT PRO SE.
RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (MELVIN BRESSLER OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, PINE, HAYES, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him after a jury trial of crimes arising from a "home invasion" robbery. We reject defendant's contention that the verdict is against the weight of the evidence ( see People v. Bleakley, 69 N.Y.2d 490, 495). Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support his conviction of burglary in the first degree (Penal Law § 140.30) under the third count of the indictment and robbery in the first degree (§ 160.15 [4]) under the sixth count of the indictment ( see People v. Gray, 86 N.Y.2d 10, 19). The challenge of defendant to the sufficiency of the evidence supporting the first and fourth counts was rendered moot by his acquittal of those counts. We reject the contention of defendant that he was denied a fair trial by prosecutorial misconduct ( see People v. Chavez-Flores, 259 A.D.2d 984, lv denied 94 N.Y.2d 821). County Court's denial of defendant's motion for a severance did not deprive defendant of a fair trial ( see People v. Green, 225 A.D.2d 1077, lv denied 88 N.Y.2d 879), nor was defendant deprived of a fair trial as the result of a juror's brief and inadvertent view of defendant in handcuffs ( see People v. Harper, 47 N.Y.2d 857, 858). Because the judgment of conviction is based upon legally sufficient trial evidence, appellate review of the legal sufficiency of the evidence presented to the grand jury is barred ( see People v. Bastian, 294 A.D.2d 882, 883, lv denied 98 N.Y.2d 694). The court properly denied defendant's motion to suppress evidence obtained by the police as the result of a stop of the vehicle that defendant was driving. The police officer was justified in stopping the vehicle based upon a reasonable suspicion that defendant and his companions had attempted to commit an unrelated convenience store robbery on the night of the home invasion ( see People v. Davis, 202 A.D.2d 989, 989). The sentence is not unduly harsh or severe. We have examined the remaining contentions in defendant's pro se supplemental brief and conclude that none requires reversal.