Opinion
2013-12-11
The PEOPLE, etc., respondent, v. James BELLMAN, appellant.
Paula Schwartz Frome, Garden City, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Judith R. Sternberg and Monica M.C. Leiter of counsel), for respondent.
Paula Schwartz Frome, Garden City, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Judith R. Sternberg and Monica M.C. Leiter of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Sullivan, J.), rendered August 3, 2011, convicting him of assault in the third degree and menacing in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
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 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).
The defendant's contention that the trial court erred in denying, without a hearing, his motion to set aside the verdict due to improper juror conduct ( see CPL 330.30[2] ) is without merit. The Supreme Court properly determined that even if the allegations were true, the alleged misconduct did not affect a substantial right of the defendant ( see People v. Rodriguez, 100 N.Y.2d 30, 35, 760 N.Y.S.2d 74, 790 N.E.2d 247; People v. Irizarry, 83 N.Y.2d 557, 561, 611 N.Y.S.2d 807, 634 N.E.2d 179).
The defendant's contention that he was deprived of a fair trial by the prosecutor's comment in summation on his pre-arrest silence is unpreserved for appellate review since he failed to raise that specific objection at trial ( see CPL 470.05[2]; People v. Beauliere, 36 A.D.3d 623, 831 N.Y.S.2d 88; People v. Materon, 276 A.D.2d 718, 716 N.Y.S.2d 313).
The defendant's remaining contentions are without merit. MASTRO, J.P., LOTT, AUSTIN and HINDS–RADIX, JJ., concur.