Summary
In People v Brossoit (192 AD2d 900 [3d Dept 1993]), defendant sought reversal of his conviction for burglary in the second degree due to the ineffective assistance of his trial counsel.
Summary of this case from People v. ThomasOpinion
April 22, 1993
Appeal from the County Court of St. Lawrence County (Nicandri, J.).
Defendant and his girlfriend, Doris Hill, were jointly indicted and convicted of burglary in the second degree under an acting-in-concert theory (Penal Law § 20.00) for breaking into Floyd Allen's home in the Town of Hammond, St. Lawrence County, in December 1989 and stealing two safes containing $3,100 cash and other valuables. County Court sentenced defendant to a prison term of 2 to 6 years. Hill's conviction was recently affirmed in a memorandum which recites the facts in greater detail and addresses most of the issues raised by defendant on this appeal (see, People v Hill, 188 A.D.2d 949).
Contrary to defendant's contention, he was not convicted solely on circumstantial evidence (see, supra), and a circumstantial evidence charge was not required because both direct and circumstantial evidence was presented (see, People v Barnes, 50 N.Y.2d 375, 380-381); defendant never requested such a charge or objected when County Court indicated that it would not provide such a charge, thus failing to preserve the issue for appellate review (see, CPL 470.05).
As was more fully set forth in People v Hill (supra), the verdict was supported by sufficient evidence and the weight of the credible evidence (see, People v Bleakley, 69 N.Y.2d 490, 495; People v Contes, 60 N.Y.2d 620, 621). Contrary to defendant's suggestions, the testimony did not establish that defendant and Hill could not have removed the safes containing the cash and other valuables. Rather, one of the detectives testified that he could have moved the safes, which were recovered, and the evidence was that the safes, which had been on wheels, had been dragged across the floor.
Additionally, County Court properly charged the jury to determine whether the prosecution's two key witnesses were accomplices and explained the corroboration requirement for accomplice testimony (see, CPL 60.22; see also, People v Hill, supra). The People provided the requisite independent corroborative evidence tending to connect defendant to this burglary (see, supra; see also, People v Moses, 63 N.Y.2d 299, 306).
Finally, upon our review of the record, we find no support for defendant's contention that he was deprived of effective assistance of counsel. As noted, there was both direct and circumstantial evidence and, therefore, defense counsel's failure to request a circumstantial evidence charge was not error. Further, defendant contends for the first time on appeal that he was "hearing impaired" and had unsuccessfully asked defense counsel to obtain an interpreter, and as a consequence decided not to testify on his own behalf. There is nothing in the record or on appeal to support this contention and, indeed, the record reflects conversations between defendant and others with no indication of this purported problem. We thus conclude that defendant received meaningful representation (see, People v Baldi, 54 N.Y.2d 137, 147).
We have examined defendant's other contentions, including that the sentence imposed is harsh and excessive, and conclude that they are without merit.
Mercure, Mahoney, Casey and Harvey, JJ., concur. Ordered that the judgment is affirmed.