Opinion
2017-1892 N CR
02-28-2019
The PEOPLE of the State of New York, Respondent, v. Marc CIQUERA, Appellant.
Randell D. Unger, for appellant. Nassau County District Attorney (Yael V. Levy and Amanda Manning of counsel), for respondent.
Randell D. Unger, for appellant.
Nassau County District Attorney (Yael V. Levy and Amanda Manning of counsel), for respondent.
PRESENT: THOMAS A. ADAMS, P.J., JERRY GARGUILO, TERRY JANE RUDERMAN, JJ
ORDERED that the judgment of conviction is affirmed.
Defendant was charged with criminal mischief in the fourth degree ( Penal Law § 145.00 [1] ). After a jury trial, he was found guilty as charged and sentenced to 45 days of incarceration, with a $175 surcharge, a $50 DNA Fee and a $25 crime victims fee.
During voir dire, a prospective juror responded to questions from defendant's attorney with answers that indicated that, if, while deliberating, the other jurors subjected her to verbal abuse over a dissenting opinion, she would seek to learn why they wanted her to change her mind, but that she might, or even "probably" would, succumb to pressure. The District Court denied defendant's challenge for cause to excuse this prospective juror, thereby necessitating a peremptory challenge to excuse her. Defendant exhausted his peremptory challenges before the completion of jury selection (see CPL 270.20 [2] ). On appeal, defendant argues that, as a result of the court's denial of his challenge for cause, he was deprived of his right to due process and an impartial jury.
A juror must be excused for cause if he or she exhibits "a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence adduced at the trial" ( CPL 270.20 [1] [b] ). A jury that has been improperly influenced is subject to impeachment (see e.g. People v. Maragh , 94 NY2d 569 [2000] [jury improperly influenced by the professional expertise of two jurors] ), but a jury is typically not subject to impeachment over the tenor of its deliberations (see People v. Brown , 48 NY2d 388 [1979] ; People v. Anderson , 249 AD2d 405 [1998] ), as "at times articulate jurors may intimidate the inarticulate, the aggressive may unduly influence the docile. Some jurors may ‘throw in’ when deliberations have reached an impasse. Others may attempt to compromise" ( People v. De Lucia , 20 NY2d 275, 278 [1967] ). Thus, we hold that the voir dire responses at issue did not implicate the impartiality of the prospective juror. Consequently, the court properly denied defendant's challenge for cause to excuse the prospective juror.
Defendant next argues that the evidence was legally insufficient to establish that he had damaged the property in question and, alternatively, that the verdict was against the weight of the evidence. His argument in support of his challenge to the legal sufficiency of the evidence is unpreserved for appellate review since, at trial, he failed to raise the specific argument he now makes on appeal (see CPL 470.05 [2] ; People v. Hawkins , 11 NY3d 484, 491-492 [2008] ; People v. Hines , 97 NY2d 56, 61 [2001] ; People v. Gray , 86 NY2d 10 [1995] ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes , 60 NY2d 620, 621 [1983] ), we find that the evidence was legally sufficient.
Insofar as is relevant here, "A person is guilty of criminal mischief in the fourth degree when, having no right to do so nor any reasonable ground to believe that he or she has such right, he or she: (1) Intentionally damages property of another person" ( Penal Law § 145.00 [1] ). Defendant was charged with damaging a surveillance camera posted near an elevator of the condominium building in which he lives, and argues that the People did not prove that the camera was damaged. The People proffered the testimony of three witnesses: an employee of the security company that had installed and serviced the security system, including the cameras, the front desk door manager of the building, and the president of the condominium's board of directors. There was testimony that the camera stopped working overnight, after defendant was seen on the surveillance camera hitting it; that the lens to the camera was broken off; that the camera was not operable after this incident; that the camera was discarded and replaced as a result of this incident; and that the security company discards old equipment if it is damaged or broken. This evidence was legally sufficient to establish that defendant had intentionally damaged the camera.
Furthermore, in conducting an independent review of the weight of the evidence (see People v. Danielson , 9 NY3d 342, 348 [2007] ), we accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, and observe their demeanor (see People v. Mateo , 2 NY3d 383 [2004] ; People v. Bleakley , 69 NY2d 490, 495 [1987] ; People v. Zephyrin , 52 AD3d 543 [2008] ). Upon a review of the record, we find that the guilty verdict was not against the weight of the evidence (see People v. Romero , 7 NY3d 633 [2006] ).
Additionally, we find that the sentence of 45 days of incarceration was not excessive, as it did not constitute an abuse of sentencing discretion or a failure to observe sentencing principles (see Penal Law § 70.15 [1] ), and we decline to modify the sentence in the interest of justice (cf. CPL 470.15 [6] [b] ; People v. Suitte , 90 AD2d 80 [1982] ).
Accordingly, the judgment of conviction is affirmed.
ADAMS, P.J., GARGUILO and RUDERMAN, JJ., concur.