Opinion
2012-04-17
The PEOPLE, etc., respondent, v. Joseph OCCHIONE, appellant.
Lynn W.L. Fahey, New York, N.Y. (Steven R. Bernhard of counsel), for appellant, and appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, and Daniel Bresnahan of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Steven R. Bernhard of counsel), for appellant, and appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, and Daniel Bresnahan of counsel), for respondent.
RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, SHERI S. ROMAN, and SANDRA L. SGROI, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cooperman, J.), rendered July 23, 2008, convicting him of burglary in the second degree, criminal mischief in the third degree, criminal possession of stolen property in the fifth degree, resisting arrest, and possession of burglar's tools, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is modified, on the law, by vacating the conviction of criminal possession of stolen property in the fifth degree and vacating the sentence imposed thereon; as so modified, the judgment is affirmed.
The defendant contends that on the People's reverse Batson–Kern application ( see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69; People v. Kern, 75 N.Y.2d 638, 657–658, 555 N.Y.S.2d 647, 554 N.E.2d 1235, cert. denied 498 U.S. 824, 111 S.Ct. 77, 112 L.Ed.2d 50), the trial court erred in failing to consider the third prong of the appropriate standard and subsequently applied the wrong standard in determining that the race-neutral excuses proffered by defense counsel were pretextual. Those contentions are unpreserved for appellate review, as the defendant failed to object on those grounds at a time when the court could have remedied the perceived error ( see CPL 470.05[2]; People v. Correa, 265 A.D.2d 488, 696 N.Y.S.2d 705). In any event, the trial court's determination that the proffered reasons for challenging the juror in question were pretextual is entitled to great deference and is supported by the record ( see People v. Fogel, 73 A.D.3d 803, 803–804, 899 N.Y.S.2d 655; People v. Clarke, 64 A.D.3d 612, 883 N.Y.S.2d 96; People v. Quito, 43 A.D.3d 411, 412, 840 N.Y.S.2d 622; People v. Richie, 217 A.D.2d 84, 89, 635 N.Y.S.2d 263). Moreover, the record indicates that the trial court properly applied the appropriate standard ( see People v. Luciano, 10 N.Y.3d 499, 503, 860 N.Y.S.2d 452, 890 N.E.2d 214; People v. Richie, 217 A.D.2d at 89, 635 N.Y.S.2d 263).
The defendant failed to preserve for appellate review his contention that the persistent violent felony offender sentencing scheme under Penal Law § 70.08 violates the principles articulated by the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435; see CPL 470.05[2]; People v. Kelly, 16 N.Y.3d 803, 804, 921 N.Y.S.2d 640, 946 N.E.2d 738; People v. Rivera, 9 N.Y.3d 904, 905, 843 N.Y.S.2d 532, 875 N.E.2d 24; People v. Cardova, 88 A.D.3d 1008, 1009, 931 N.Y.S.2d 375, lv. denied 18 N.Y.3d 882, 939 N.Y.S.2d 752, 963 N.E.2d 129; People v. McKoy, 300 A.D.2d 601, 602, 751 N.Y.S.2d 882). In any event, the contention is without merit ( see People v. Bell, 15 N.Y.3d 935, 936, 915 N.Y.S.2d 208, 940 N.E.2d 913, cert. denied ––– U.S. ––––, 131 S.Ct. 2885, 179 L.Ed.2d 1197; People v. Cardova, 88 A.D.3d 1008, 931 N.Y.S.2d 375).
The defendant contends that he was denied his statutory right to testify before the grand jury. Having failed to move to dismiss the indictment within five days after his arraignment thereon, the defendant waived this contention ( see CPL 190.50[5][c]; People v. Venable, 7 A.D.3d 647, 648, 776 N.Y.S.2d 497). Further, “contrary to the defendant's contention, his attorney's failure to effectuate his intention to testify before the grand jury, standing alone, did not constitute the denial of effective assistance of counsel” ( People v. Venable, 7 A.D.3d at 648, 776 N.Y.S.2d 497).
The defendant's contention that the evidence was legally insufficient to establish his guilt of burglary in the second degree is unpreserved for appellate review ( see CPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 621, 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 with respect to the count of burglary in the second degree ( see Penal Law § 140.30; People v. Romero, 78 A.D.3d 740, 741, 909 N.Y.S.2d 911; People v. Washington, 26 A.D.3d 400, 810 N.Y.S.2d 483). 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 are satisfied that the verdict of guilt with respect to the count of burglary in the second degree was not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 644–645, 826 N.Y.S.2d 163, 859 N.E.2d 902).
The People correctly concede that the defendant's conviction of criminal possession of stolen property in the fifth degree must be vacated, since that charge was dismissed before the trial and was mistakenly submitted to the jury ( see People v. Romero, 309 A.D.2d 953, 954, 766 N.Y.S.2d 369).
The defendant's remaining contentions, raised in his pro se supplemental brief, are unpreserved for appellate review, and, in any event, without merit.