Opinion
2012-11-9
The PEOPLE of the State of New York, Respondent, v. Jackson SHOL, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Karen Russo–McLaughlin of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Karen Russo–McLaughlin of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND WHALEN, JJ.
MEMORANDUM:
On appeal from a judgment convicting him following a jury trial of burglary in the first degree (Penal Law § 140.30 [3] ) and criminal contempt in the first degree (§ 215.51[b][vi] ), defendant contends that County Court should have granted his motion to dismiss the indictment because the integrity of the grand jury proceeding was impaired. That contention, however, is “not preserved for our review because defendant did not move to dismiss the indictment pursuant to CPL 210.35(5)” ( People v. Workman, 277 A.D.2d 1029, 1031, 716 N.Y.S.2d 198,lv. denied96 N.Y.2d 764, 725 N.Y.S.2d 291, 748 N.E.2d 1087;see People v. Beyor, 272 A.D.2d 929, 930, 708 N.Y.S.2d 535,lv. denied95 N.Y.2d 832, 713 N.Y.S.2d 139, 735 N.E.2d 419;People v. Sheltray, 244 A.D.2d 854, 854, 665 N.Y.S.2d 224,lv. denied91 N.Y.2d 897, 669 N.Y.S.2d 12, 691 N.E.2d 1038). In any event, defendant's contention lacks merit. A grand jury proceeding is defective when it “fails to conform to the requirements of article one hundred ninety [concerning grand jury proceedings] to such degree that the integrity thereof is impaired and prejudice to the defendant may result” (CPL 210.35[5] [emphasis added]; see People v. Darby, 75 N.Y.2d 449, 454, 554 N.Y.S.2d 426, 553 N.E.2d 974). Although a “defendant need not demonstrate actual prejudice under this statutory scheme to prevail” ( People v. Sayavong, 83 N.Y.2d 702, 709, 613 N.Y.S.2d 343, 635 N.E.2d 1213), “ ‘dismissal of an indictment under CPL 210.35(5) must meet a high test and is limited to instances of prosecutorial misconduct, fraudulent conduct or errors which potentially prejudice the ultimate decision reached by the [g]rand [j]ury’ ” ( Sheltray, 244 A.D.2d at 855, 665 N.Y.S.2d 224;see People v. Huston, 88 N.Y.2d 400, 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362). Here, there was no “articulable ‘likelihood of’ or ... ‘potential for’ prejudice” ( People v. Adessa, 89 N.Y.2d 677, 686, 657 N.Y.S.2d 863, 680 N.E.2d 134).
The brief reference to a prior incident of domestic violence between defendant and the complainant did not impair the integrity of the proceedings or result in potential prejudice to defendant “in light of the overwhelming evidence before the grand jury that he committed the crimes charged” ( People v. Ramirez, 298 A.D.2d 413, 413, 751 N.Y.S.2d 248,lv. denied99 N.Y.2d 563, 754 N.Y.S.2d 215, 784 N.E.2d 88;see People v. Rivas, 260 A.D.2d 583, 583–584, 688 N.Y.S.2d 604,lv. denied93 N.Y.2d 1025, 697 N.Y.S.2d 584, 719 N.E.2d 945;People v. McCreary, 186 A.D.2d 1070, 1071, 588 N.Y.S.2d 686,lv. denied80 N.Y.2d 1028, 592 N.Y.S.2d 678, 607 N.E.2d 825). Furthermore, we conclude that the prosecutor conducted an adequate voir dire of the grand juror who indicated that she was possibly aware of the prior incident ( see e.g. People v. Monserrate, 24 Misc.3d 1229[A], 2009 N.Y. Slip Op. 51665 [U], *5–6, 2009 WL 2357011;cf. People v. Revette, 48 A.D.3d 886, 887–888, 851 N.Y.S.2d 299).
Although defendant contends that the People failed to establish that he used or threatened to use a dangerous instrument during the commission of the burglary and thus that the evidence is legally insufficient to support the burglary conviction, he “made only a general motion to dismiss and thus failed to preserve his contention for our review” ( People v. Johnson, 43 A.D.3d 1422, 1422, 842 N.Y.S.2d 668,lv. denied9 N.Y.3d 1035, 852 N.Y.S.2d 20, 881 N.E.2d 1207;see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). In any event, the evidence, viewed 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), is legally sufficient with respect to the use or threatened use of a dangerous instrument. The evidence at trial established that, when defendant broke into the complainant's apartment, he possessed a wooden or metal “baseball cue,” which he used to “smash[ ]” through various doors in the residence, including a wooden bedroom door. Such evidence is legally sufficient to establish that the object used by defendant was an “instrument, article or substance ... which, under the circumstances in which it [was] used ... or threatened to be used, [was] readily capable of causing death or other serious physical injury” (Penal Law § 10.00[13]; see People v. Carter, 53 N.Y.2d 113, 116, 440 N.Y.S.2d 607, 423 N.E.2d 30;Matter of Shakiea B., 53 A.D.3d 1057, 1059, 860 N.Y.S.2d 777;People v. Griffin, 24 A.D.3d 972, 973, 805 N.Y.S.2d 482,lv. denied6 N.Y.3d 834, 814 N.Y.S.2d 82, 847 N.E.2d 379;see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). “Viewing the evidence in light of the elements of the crimes as charged to the jury ..., and affording the appropriate deference to the jury's credibility determinations ..., we reject defendant's [further] contention that the verdict is against the weight of the evidence” ( People v. Miller, 93 A.D.3d 1305, 1305–1306, 940 N.Y.S.2d 501;see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1;Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
Finally, we conclude that the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.