Opinion
2012-12-19
The PEOPLE, etc., respondent, v. William TOCKASH, appellant.
Judah Maltz, Kew Gardens, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Barbara Kornblau of counsel), for respondent.
Judah Maltz, Kew Gardens, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Barbara Kornblau of counsel), for respondent.
DANIEL D. ANGIOLILLO, J.P., RUTH C. BALKIN, PLUMMER E. LOTT, and SHERI S. ROMAN, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Berkowitz, J.), rendered April 8, 2011, convicting him of criminal possession of a weapon in the third degree, coercion in the first degree, and unlawful imprisonment in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court properly declined to charge coercion in the second degree as a lesser-included offense of coercion in the first degree ( see People v. Discala, 45 N.Y.2d 38, 407 N.Y.S.2d 660, 379 N.E.2d 187;People v. Eboli, 34 N.Y.2d 281, 357 N.Y.S.2d 435, 313 N.E.2d 746).
The defendant's contention that his conviction of coercion in the first degree was not supported by legally sufficient evidence is unpreserved for appellate review ( seeCPL 470.05[2] ) and, in any event, is without merit. 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 his guilt of that crime 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, 348, 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, 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 the exercise of our factual review power ( seeCPL 470.15[5] ), we are satisfied that the verdict of guilt as to coercion in the first degree 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). Similarly, contrary to the defendant's contention, the verdict of guilt as to criminal possession of a weapon in the third degree 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).
Contrary to the defendant's contention, the Supreme Court properly denied his motion for a mistrial on the ground of alleged juror misconduct in light of the fact that juror number eight professed her ability to keep an open mind and to base her decision on the evidence and the law as instructed by the court ( see People v. Elias, 90 A.D.3d 947, 947–948, 934 N.Y.S.2d 811).
The defendant's remaining contentions are unpreserved for appellate review, and, in any event, are without merit.