People v. Cancel

Feb 16, 2010
Versions:70 A.D.3d 960
897 N.Y.S.2d 444

Ordered that the judgment is affirmed.

The defendant‘s contention that the evidence was legally insufficient to establish that he and another person formed and shared a common intent to murder the victim is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484 [2008]; People v Mathis, 60 AD3d 697, 698 [2009]; People v Perez, 265 AD2d 347, 348 [1999]). 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 it was legally sufficient to establish the defendant‘s guilt of murder in the second degree beyond a reasonable doubt. The defendant, with the requisite mental state, acted in concert with, and intentionally aided, a second shooter (see Penal Law § 20.00; People v Cheng, 232 AD2d 651 [1996]; People v Johnson, 162 AD2d 620 [1990]).

Contrary to the defendant‘s contentions, the Supreme Court properly declined to dismiss a juror and declare a mistrial on the ground that the juror was grossly unqualified. To find a juror grossly unqualified, the court must be convinced that the juror would be prevented from rendering an impartial verdict (see People v Buford, 69 NY2d 290, 298 [1987]). Such determination is to be afforded great deference (see People v Punwa, 24 AD3d 471, 472 [2005]; People v Franklin, 7 AD3d 966, 967 [2004]), and we perceive no basis to disturb the determination on appeal.

The defendant was not deprived of the effective assistance of counsel (see People v Benevento, 91 NY2d 708 [1998]; People v Baldi, 54 NY2d 137 [1981]). Rivera, J.P., Leventhal, Lott and Austin, JJ., concur.