Opinion
2018–10561 Ind.No. 935/17
09-16-2020
The PEOPLE, etc., Respondent, v. Anthony J. SINGLETON, Appellant.
Patrick Michael Megaro, Uniondale, NY, for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Judith R. Sternberg and Autumn S. Hughes of counsel), for respondent.
Patrick Michael Megaro, Uniondale, NY, for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Judith R. Sternberg and Autumn S. Hughes of counsel), for respondent.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, COLLEEN D. DUFFY, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Helene F. Gugerty, J.), rendered July 26, 2018, convicting him of criminal contempt in the first degree, aggravated harassment in the second degree (two counts), aggravated family offense (two counts), and criminal mischief in the fourth degree, upon a jury verdict, and sentencing him to indeterminate terms of 1? to 4 years imprisonment on the conviction of criminal contempt and on the conviction of aggravated family offense under count 8 of the indictment and definite terms of 1 year imprisonment on the convictions of aggravated harassment and criminal mischief, to be served concurrently, and a definite term of 1 year imprisonment on the conviction of aggravated family offense under count 9 of the indictment, to be served consecutively to the sentences on the other convictions. ORDERED that the judgment is modified, on the law, by directing that the sentence imposed on the conviction of aggravated family offense under count 9 of the indictment shall run concurrently with the remaining sentences; as so modified, the judgment is affirmed.
Since the People did not exhaust their peremptory challenges, the defendant's contention that the Supreme Court should not have granted the People's challenge to a prospective juror for cause is not reviewable on appeal (see CPL 270.20[2] ; People v. James, 259 A.D.2d 709, 688 N.Y.S.2d 163 ).
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 of criminal mischief in the fourth degree beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 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 ; 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 as to criminal mischief in the fourth 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 ).
The Supreme Court providently exercised its discretion in denying the defendant's request for a missing witness charge with respect to the complainant. The defendant failed to demonstrate that the complainant, who could not be located despite diligent efforts and who was hostile to the People, was available and under the People's control (see People v. Mobley, 77 A.D.3d 488, 908 N.Y.S.2d 686 ; People v. Marino, 21 A.D.3d 430, 800 N.Y.S.2d 439 ; People v. Bryant, 11 A.D.3d 630, 784 N.Y.S.2d 114 ).
As the People concede, the Supreme Court erred in directing that the one-year term of imprisonment imposed on the conviction of aggravated family offense under count 9 of the indictment run consecutively to the sentences of imprisonment imposed on the other convictions (see Penal Law § 70.35 ; People v. Eastwood, 48 A.D.3d 591, 592, 849 N.Y.S.2d 899 ). Accordingly, we modify the judgment by directing that the sentence imposed on count 9 of the indictment shall run concurrently with the remaining sentences.
DILLON, J.P., CHAMBERS, COHEN and DUFFY, JJ., concur.