Opinion
2012-12-12
The PEOPLE, etc., respondent, v. Carl SIMON, appellant.
Del Atwell, East Hampton, N.Y., for appellant, and appellant pro se. *900Thomas J. Spota, District Attorney, Riverhead, N.Y. (Ronnie Jane Lamm of counsel), for respondent.
Del Atwell, East Hampton, N.Y., for appellant, and appellant pro se. *900Thomas J. Spota, District Attorney, Riverhead, N.Y. (Ronnie Jane Lamm of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Hudson, J.), rendered September 8, 2009, convicting him of attempted assault in the first degree, upon a jury verdict, and imposing sentence.
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,cert. denied542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;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).
Although the prosecutor improperly elicited testimony which constituted inadmissible hearsay, the grand jury proceeding did not fail to conform to the requirements of CPL article 190 to such a degree that the integrity thereof was impaired and, in view of the sufficiency of the independent, admissible proof which supported the indictment, no prejudice to the defendant could have resulted from the improperly elicited testimony ( see People v. Miles, 76 A.D.3d 645, 905 N.Y.S.2d 775;People v. Read, 71 A.D.3d 1167, 1168, 896 N.Y.S.2d 912;People v. Walton, 70 A.D.3d 871, 873, 895 N.Y.S.2d 175).
The defendant contends that the indictment should be dismissed because he was denied his right to testify before the grand jury. A motion to dismiss on that ground must be made within five days after arraignment or it is deemed waived ( seeCPL 190.50[5][c] ). Here, the defendant's motion was made several months after arraignment, well beyond the time limit ( see People v. Brown, 227 A.D.2d 691, 641 N.Y.S.2d 763;People v. McMoore, 214 A.D.2d 893, 626 N.Y.S.2d 289,cert. denied516 U.S. 1096, 116 S.Ct. 822, 133 L.Ed.2d 765).
Contrary to the defendant's contention, “[s]ince the case against [him] consisted of both direct and circumstantial evidence,” he was not entitled to a circumstantial evidence charge ( People v. Garson, 69 A.D.3d 650, 651, 892 N.Y.S.2d 511;see People v. Washington, 45 A.D.3d 880, 847 N.Y.S.2d 113).
The defendant's remaining contentions, including those raised in his pro se supplemental brief, are without merit.