Opinion
04-24-2024
The PEOPLE, etc., respondent, v. Tyeesha BOOKER, appellant.
Carol E. Castillo, East Setauket, NY, for appellant. Raymond A. Tierney, District Attorney, Riverhead, NY (Kim Marie Carson, Marion Tang, and Glenn Green of counsel), for respondent.
Carol E. Castillo, East Setauket, NY, for appellant.
Raymond A. Tierney, District Attorney, Riverhead, NY (Kim Marie Carson, Marion Tang, and Glenn Green of counsel), for respondent.
BETSY BARROS, J.P., CHERYL E. CHAMBERS, DEBORAH A. DOWLING, BARRY E. WARHIT, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Suffolk County (Timothy Mazzei, J.), rendered January 19, 2017, convicting her of endangering the welfare of a child (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant was convicted of endangering the welfare of a child (two counts), based upon evidence that she allowed her husband to reside with her niece and nephew in the same household, in violation of orders of protection against him (see People v. White, 195 A.D.3d 1049, 146 N.Y.S.3d 796).
[1, 2] On appeal, the defendant asserts that the indictment against her was juris-dictionally defective because it did not allege the time, place, or manner of the offenses. This contention was not raised in the County Court, and therefore, it is unpreserved for appellate review. Preservation is required to raise this issue of law, since "[i]nsufficiency in the factual allegations alone, as opposed to a failure to allege every material element of the crime, does not constitute a nonwaivable jurisdictional defect" (People v. Iannone, 45 N.Y.2d 589, 600–601, 412 N.Y.S.2d 110, 384 N.E.2d 656). In any event, on the merits, "[t]he indictment effectively charged the defendant with the commission of a partic- ular crime and afforded [her] fair notice of the charges made against [her], so that [she] could prepare a defense and avoid subsequent attempts to retry [her] for the same crime" (People v. Best, 186 A.D.3d 845, 848,130 N.Y.S.3d 461).
[3, 4] The defendant further contends that based upon the trial evidence, the indictment was duplicitous because multiple criminal acts could have been the basis of finding her guilty; therefore, the counts against the defendant each charged more than one offense (see People v. Allen, 24 N.Y.3d 441, 999 N.Y.S.2d 350, 24 N.E.3d 586). Again, this issue is not preserved for appellate review, and duplicitousness of an indictment based upon the trial evidence is an issue that requires preservation (see id.; People v. Hill, 124 A.D.3d 456, 1 N.Y.S.3d 93). In any event, the counts of the indictment in issue alleged a continuous course of conduct and, therefore, were "not subject to the duplicity rules" requiring the allegation of a single act (People v. Kuykendall, 43 A.D.3d 493, 495, 840 N.Y.S.2d 472; see People v. Rosich, 170 A.D.2d 703, 567 N.Y.S.2d 749).
[5, 6] The defendant’s contention that her convictions were not based upon legally sufficient evidence is not preserved for appellate review, as that contention was not raised with specificity in her motion for a trial order of dismissal (see CPL 470.05[2]; People v. Cruz, 137 A.D.3d 1158, 1159, 27 N.Y.S.3d 643). In any event, 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 beyond a reasonable doubt (see Matter of Sage H. [Lovette H.], 204 A.D.3d 795, 164 N.Y.S.3d 460; Matter of Lilliana K. [Ranald K.], 174 A.D.3d 990, 107 N.Y.S.3d 462). 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, 779 N.Y.S.2d 399, 811 N.E.2d 1053; People v. Bleakley, 69 N.Y.2d 490, 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 remaining contentions are without merit (see People v. McGee, 20 N.Y.3d 513, 518, 964 N.Y.S.2d 73, 986 N.E.2d 907; People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213; People v. Mahboubian, 74 N.Y.2d 174, 184, 544 N.Y.S.2d 769, 543 N.E.2d 34; People v. Reynoso, 73 N.Y.2d 816, 819, 537 N.Y.S.2d 113, 534 N.E.2d 30; People v. White, 195 A.D.3d 1049, 1050,146 N.Y.S.3d 796).
BARROS, J.P., CHAMBERS, DOWLING and WARHIT, JJ., concur.