Opinion
KA 01-01622
December 30, 2002.
Appeal from a judgment of Ontario County Court (Henry, Jr., J.), entered June 15, 2001, convicting defendant after a jury trial of attempted grand larceny in the third degree.
ZIMMERMAN TYO, SHORTSVILLE (JOHN E. TYO OF COUNSEL), FOR DEFENDANT-APPELLANT.
RICKY BUTLER, DEFENDANT-APPELLANT PRO SE.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (BRIAN D. DENNIS OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., PINE, HURLBUTT, BURNS, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him after a jury trial of attempted grand larceny in the third degree (Penal Law § 110.00, 155.35). We reject defendant's contention that the verdict is against the weight of the evidence ( see People v. Bleakley, 69 N.Y.2d 490, 495). Also contrary to defendant's contention, County Court properly permitted the People to amend the indictment to reflect the correct time period in which the crime allegedly occurred ( see CPL 200.70; People v. Hale [appeal No. 1], 236 A.D.2d 807, lv denied 89 N.Y.2d 1036; People v. Palmer, 152 A.D.2d 924, lv denied 74 N.Y.2d 850). Because proof of defendant's guilt did not rest entirely on circumstantial evidence, the court properly denied defendant's request for a moral certainty charge ( see People v. Roldan, 88 N.Y.2d 826, 827; People v. Concepcion, 262 A.D.2d 1058, 1058-1059, lv denied 94 N.Y.2d 821).
The court also properly denied defendant's request for a missing witness charge with respect to an unidentified store clerk who "had no relationship to the prosecution that would warrant a finding of `control'" ( People v. Vargar, 293 A.D.2d 359, 359, lv denied 98 N.Y.2d 682). Defendant failed to preserve for our review his contentions that the court erred in failing to replace a juror who was asleep during the trial ( see People v. Rosario, 298 A.D.2d 122 [Oct. 1, 2002]; People v. Freeney, 291 A.D.2d 913, 914, lv denied 98 N.Y.2d 637), that the prosecutor made improper comments during summation ( see People v. Comer, 73 N.Y.2d 955, 957), and that the judge was biased against him ( see People v. Remp, 294 A.D.2d 823). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice ( see CPL 470.15 [a]). Because the judgment of conviction is based upon legally sufficient trial evidence, appellate review of the sufficiency of the evidence presented to the grand jury is barred ( see People v. Bastian, 294 A.D.2d 882, 883, lv denied 98 N.Y.2d 694).
Further, the alleged insufficiency of the evidence presented to the grand jury, even if established, "did not render the People's statement of readiness illusory" ( People v. Gutter, 222 A.D.2d 330, 331). Thus, the court properly denied defendant's motion to dismiss the indictment pursuant to CPL 30.30. The court also properly refused to admit in evidence a hearsay statement allegedly made to defense counsel's law partner ( see People v. Jones [appeal No. 1], 256 A.D.2d 1172, lv denied 93 N.Y.2d 972). Finally, we agree with defendant that the court abused its discretion in permitting the prosecutor to question defendant with respect to all of his prior convictions, including the facts and circumstances underlying those convictions ( see People v. Coe, 95 A.D.2d 685, lv denied 60 N.Y.2d 705). We conclude, however, that the error is harmless ( see People v. Jacobs, 298 A.D.2d 954 [Oct. 1, 2002]).