Opinion
01-21-2015
The PEOPLE, etc., respondent, v. Paul REMBERT, appellant.
John F. Ryan, White Plains, N.Y. (Salvatore A. Gaetani of counsel), for appellant, and appellant pro se. Janet DiFiore, District Attorney, White Plains, N.Y. (Hae Jin Liu, Laurie G. Sapakoff, and Steven A. Bender of counsel), for respondent.
John F. Ryan, White Plains, N.Y. (Salvatore A. Gaetani of counsel), for appellant, and appellant pro se.
Janet DiFiore, District Attorney, White Plains, N.Y. (Hae Jin Liu, Laurie G. Sapakoff, and Steven A. Bender of counsel), for respondent.
WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, SANDRA L. SGROI, and BETSY BARROS, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Zambelli, J.), rendered December 18, 2012, convicting him of burglary in the second degree, petit larceny, and criminal mischief in the fourth degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support his conviction of petit larceny is unpreserved for appellate review (see CPL 470.05[2] ; People v. Kolupa, 13 N.Y.3d 786, 787, 887 N.Y.S.2d 536, 916 N.E.2d 430 ; People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61 ). 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 of petit larceny beyond a reasonable doubt. 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 fact-finders' opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 494, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict as to that crime 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 Supreme Court's Molineux ruling (see People v. Molineux, 168 N.Y. 264, 61 N.E. 286 ) constituted a provident exercise of discretion. The evidence was admissible to show the defendant's intent to commit the crime of burglary in the second degree, and the probative value exceeded the potential for prejudice to the defendant (see People v. Ingram, 71 N.Y.2d 474, 479, 527 N.Y.S.2d 363, 522 N.E.2d 439 ; People v. Alke, 90 A.D.3d 943, 944, 935 N.Y.S.2d 96 ; People v. Moore, 50 A.D.3d 926, 927, 854 N.Y.S.2d 782 ). In addition, the Supreme Court's limiting instructions to the jury served to alleviate any potential prejudice resulting from the admission of the evidence (see People v. Yusuf, 104 A.D.3d 881, 883, 961 N.Y.S.2d 316 ; People v. Alke, 90 A.D.3d at 944, 935 N.Y.S.2d 96 ).
Contrary to the defendant's contentions in his main brief and his pro se supplemental brief, the Supreme Court providently exercised its discretion in denying his motion for a mistrial, which was based on certain conduct by the prosecutor (see People v. Ortiz, 54 N.Y.2d 288, 292, 445 N.Y.S.2d 116, 429 N.E.2d 794 ; People v. Johnson, 261 A.D.2d 125, 126, 691 N.Y.S.2d 19 ; see also People v. Wright, 110 A.D.3d 836, 837, 972 N.Y.S.2d 660 ).
The defendant's remaining contentions, including those raised in his pro se supplemental brief, are unpreserved for appellate review and, in any event, are without merit.