Summary
In People v. Bellamy, 158 AD2d 525, 551, NYS2d 291 (2d Dept 1990), claims of juror misconduct made in an affidavit by the co-defendant's sister were insufficient to gain a hearing because they "contained only hearsay allegations."
Summary of this case from People v. GiucaOpinion
February 13, 1990
Appeal from the Supreme Court, Queens County (Leahy, J.).
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), we find that it was legally sufficient to establish the defendant's guilt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (CPL 470.15).
Since none of the comments made by the prosecutor during his summation were objected to by defense counsel, any error in this regard has not been preserved for appellate review (CPL 470.05; People v Dordal, 55 N.Y.2d 954). In any event, we find that the comments now complained of did not deprive the defendant of a fair trial (People v Galloway, 54 N.Y.2d 396).
Nor was the defendant deprived of a fair trial by the police department's destruction of a .22 caliber shell casing found at the crime scene. The record fails to demonstrate any evidence of bad faith on the part of the People (Arizona v Youngblood, 488 U.S. 51; People v Haupt, 71 N.Y.2d 929; People v Ramos, 147 A.D.2d 718).
The trial court did not improvidently exercise its discretion in denying the defendant's motion to set aside the verdict based on alleged juror misconduct, without a hearing (People v Friedgood, 58 N.Y.2d 467; People v Fusillo, 94 A.D.2d 802). The affidavit of the codefendant's sister contained only hearsay allegations. In any event, the finality of the jury verdict will not be disturbed simply because a juror had a change of heart (People v Horney, 112 A.D.2d 841; People v Smalls, 112 A.D.2d 173).
The imposition of consecutive sentences was not an improvident exercise of discretion (People v Brathwaite, 63 N.Y.2d 839; People v Ferkins, 116 A.D.2d 760). Moreover, in light of the brutality displayed by the defendant, the sentence imposed was neither unduly harsh nor excessive (People v Suitte, 90 A.D.2d 80). Brown, J.P., Rubin, Kooper and Harwood, JJ., concur.