Opinion
2013-04-26
The PEOPLE of the State of New York, Respondent, v. Roberto A. ASTACIO, Defendant–Appellant.
Kimberly J. Czapranski, Conflict Defender, Rochester (Joseph D. Waldorf of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Erin Tubbs of Counsel), for Respondent.
Kimberly J. Czapranski, Conflict Defender, Rochester (Joseph D. Waldorf of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Erin Tubbs of Counsel), for Respondent.
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, burglary in the first degree (Penal Law § 140.30[2] ) and assault in the first degree (§ 120.10[4] ). To the extent defendant challenges the legal sufficiency of the evidence supporting the conviction of assault in the first degree, that contention is not preserved for our review ( see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329,rearg. denied97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396) and, in any event, lacks merit ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Additionally, viewing the evidence in light of the elements of the crimes of burglary in the first degree and assault in the first degree as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we reject defendant's contention that the verdict with respect to those crimes is against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). The evidence establishes that defendant's actions were a “sufficiently direct cause” of the injuries to the relevant victim ( People v. Petrosino, 299 A.D.2d 851, 852, 750 N.Y.S.2d 410,lv. denied99 N.Y.2d 618, 757 N.Y.S.2d 829, 787 N.E.2d 1175 [internal quotation marks omitted]; see People v. Darrow, 260 A.D.2d 928, 929, 691 N.Y.S.2d 189;see generally People v. Stewart, 40 N.Y.2d 692, 697, 389 N.Y.S.2d 804, 358 N.E.2d 487). Moreover, “ [r]esolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury” ( People v. Witherspoon, 66 A.D.3d 1456, 1457, 885 N.Y.S.2d 829,lv. denied13 N.Y.3d 942, 895 N.Y.S.2d 333, 922 N.E.2d 922 [internal quotation marks omitted] ). Defendant contends that the assault in the first degree count in the indictment of which he was convicted is duplicitous. That contention is not preserved for our review ( see People v. Sponburgh, 61 A.D.3d 1415, 1416, 877 N.Y.S.2d 585,lv. denied12 N.Y.3d 929, 884 N.Y.S.2d 711, 912 N.E.2d 1092), and we decline to exercise our power to review it as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ).
Defendant's contention that the People committed a Brady violation is also not preserved for our review ( see People v. Jacobs, 71 A.D.3d 693, 693, 894 N.Y.S.2d 908,lv. denied14 N.Y.3d 888, 903 N.Y.S.2d 777, 929 N.E.2d 1012;People v. Caswell, 56 A.D.3d 1300, 1303, 867 N.Y.S.2d 638,lv. denied11 N.Y.3d 923, 874 N.Y.S.2d 8, 902 N.E.2d 442,reconsideration denied12 N.Y.3d 781, 879 N.Y.S.2d 58, 906 N.E.2d 1092) and, in any event, lacks merit ( see People v. Griffin, 48 A.D.3d 894, 895, 851 N.Y.S.2d 718,lv. denied10 N.Y.3d 959, 863 N.Y.S.2d 143, 893 N.E.2d 449;see also People v. Dizak, 93 A.D.3d 1182, 1184, 940 N.Y.S.2d 408,lv. denied19 N.Y.3d 972, 950 N.Y.S.2d 355, 973 N.E.2d 765,reconsideration denied20 N.Y.3d 932, 957 N.Y.S.2d 691, 981 N.E.2d 288). Moreover, “a defendant's constitutional right to a fair trial is not violated when, as here, he is given a meaningful opportunity to use the allegedly exculpatory material to cross-examine the People's witnesses or as evidence during his case” ( People v. Morrison, 90 A.D.3d 1554, 1555, 935 N.Y.S.2d 234,lv. denied19 N.Y.3d 1028, 953 N.Y.S.2d 561, 978 N.E.2d 113,reconsideration denied20 N.Y.3d 934, 957 N.Y.S.2d 694, 981 N.E.2d 291 [internal quotation marks omitted] ). Contrary to defendant's further contention, there was no error under People v. Trowbridge, 305 N.Y. 471, 113 N.E.2d 841, which restricts third-party testimony regarding an eyewitness's pretrial identification of a defendant, because here the eyewitness herself testified as to her identification of defendant ( see People v. Thomas, 17 N.Y.3d 923, 926, 934 N.Y.S.2d 776, 958 N.E.2d 905;People v. Bolden, 58 N.Y.2d 741, 742–743, 459 N.Y.S.2d 22, 445 N.E.2d 198).
Defendant failed to preserve for our review his contention that County Court erred in discharging a sworn juror and, contrary to defendant's contention, preservation is required inasmuch as the court's alleged error is not a mode of proceedings error ( see People v. Powell, 79 A.D.3d 1791, 1792, 913 N.Y.S.2d 468,lv. denied17 N.Y.3d 799, 929 N.Y.S.2d 107, 952 N.E.2d 1102;see also People v. Kelly, 5 N.Y.3d 116, 119–120, 799 N.Y.S.2d 763, 832 N.E.2d 1179). In any event, defendant's contention regarding the alleged error in discharging that juror lacks merit inasmuch as the court properly discharged the juror from service pursuant to CPL 270.35 ( see People v. Washington, 50 A.D.3d 1539, 1540, 856 N.Y.S.2d 783,lv. denied11 N.Y.3d 742, 864 N.Y.S.2d 401, 894 N.E.2d 665;see also People v. Jeanty, 94 N.Y.2d 507, 516–517, 706 N.Y.S.2d 683, 727 N.E.2d 1237,rearg.denied95 N.Y.2d 849, 713 N.Y.S.2d 524, 735 N.E.2d 1289;People v. Forino, 65 A.D.3d 1259, 1260, 887 N.Y.S.2d 114,lv. denied13 N.Y.3d 907, 895 N.Y.S.2d 321, 922 N.E.2d 910).
Defendant also did not preserve for our review his contention that the court erred in failing to discharge a sworn juror ( see People v. Dennis, 91 A.D.3d 1277, 1279, 937 N.Y.S.2d 496,lv. denied19 N.Y.3d 995, 951 N.Y.S.2d 472, 975 N.E.2d 918), and we reject his contention that the court's alleged error is a mode of proceedings error for which preservation is not required ( see Powell, 79 A.D.3d at 1792, 913 N.Y.S.2d 468, citing Kelly, 5 N.Y.3d at 119–120, 799 N.Y.S.2d 763, 832 N.E.2d 1179). In any event, defendant's contention lacks merit ( see Dennis, 91 A.D.3d at 1279, 937 N.Y.S.2d 496;see generally People v. Buford, 69 N.Y.2d 290, 298, 514 N.Y.S.2d 191, 506 N.E.2d 901).
Assuming, arguendo, that defendant preserved for our review his contention that the testimony of a police investigator violated defendant's constitutional right of confrontation ( see generally Crawford v. Washington, 541 U.S. 36, 53–54, 124 S.Ct. 1354, 158 L.Ed.2d 177), we conclude that the statements at issue were “testimonial” and thus violated his right of confrontation ( see Morrison, 90 A.D.3d at 1556, 935 N.Y.S.2d 234). Nevertheless, we conclude that the error is harmless. “Trial errors resulting in violation of a criminal defendant's Sixth Amendment right to confrontation ‘are considered harmless when, in light of the totality of the evidence, there is no reasonable possibility that the error affected the jury's verdict’ ” ( id. at 1557, 935 N.Y.S.2d 234, quoting People v. Porco, 17 N.Y.3d 877, 878, 934 N.Y.S.2d 360, 958 N.E.2d 538,cert. denied––– U.S. ––––, 132 S.Ct. 2453, 182 L.Ed.2d 1078). Here, the evidence of guilt was overwhelming inasmuch as it included testimony from several eyewitnesses, as well as a statement defendant gave linking himself to the crimes, and there was no reasonable possibility that the error affected the jury's verdict ( see generally People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787).
To the extent that defendant's additional contention that he was denied a fair trial by prosecutorial misconduct is preserved for our review ( seeCPL 470.05[2] ), it is without merit. The alleged misconduct was “not so egregious as to deprive defendant of a fair trial” ( People v. Wittman, 103 A.D.3d 1206, 1207, 958 N.Y.S.2d 911). Finally, viewing the evidence, the law, and the circumstances of this case in totality and at the time of representation, we conclude that defense counsel provided meaningful representation ( see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.