People v. Glover

Jan 19, 2010
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The trial court providently exercised its discretion in denying the defendant‘s challenges for cause to two potential jurors. The statements made by the two prospective jurors “did ‍​​​​‌‌​‌​​​​​‌​​​​​‌‌‌‌​‌​‌​‌​‌​‌​​‌‌​‌​​‌‌​‌​​​​‌‌​​​‌‌‌​‌‌​‌​‌‌‌‌​‌‌​​‌​​‌‌​‌‌‌​​‌​​‌‌‌‌​​​​‌‌‍not rise to the level of actual bias or otherwise indicate that [they] would be unable to render an impartial verdict” (People v Smith, 48 AD3d 489 [2008]; see People v Ross, 12 AD3d 463 [2004]; People v Archer, 210 AD2d 241 [1994]). Thus, “there was no basis for the [County] Court to administer an expurgatory oath or sustain the defendant‘s challenge[s] for cause” (People v Smith, 48 AD3d at 489; see People v Ross, 12 AD3d at 463; People v Archer, 210 AD2d at 241-242).

Contrary to ‍​​​​‌‌​‌​​​​​‌​​​​​‌‌‌‌​‌​‌​‌​‌​‌​​‌‌​‌​​‌‌​‌​​​​‌‌​​​‌‌‌​‌‌​‌​‌‌‌‌​‌‌​​‌​​‌‌​‌‌‌​​‌​​‌‌‌‌​​​​‌‌‍the defendant‘s contention, the People presented legally sufficient proof that he committed the crime of criminal possession of stolen property in the third degree (see People v Cintron, 95 NY2d 329, 332 [2000]; People v Olaya, 1 AD3d 615 [2003]; People v Pharr, 288 AD2d 239 [2001]; see also People v Williams, 74 NY2d 675, 676 [1989]; People v Rivera, 5 AD3d 699 [2004]; People v Rattray, 259 AD2d 569 [1999]). 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 NY3d 342 [2007]), we nevertheless accord great deference to the jury‘s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).

The defendant‘s contention that he was improperly sentenced as a second ‍​​​​‌‌​‌​​​​​‌​​​​​‌‌‌‌​‌​‌​‌​‌​‌​​‌‌​‌​​‌‌​‌​​​​‌‌​​​‌‌‌​‌‌​‌​‌‌‌‌​‌‌​​‌​​‌‌​‌‌‌​​‌​​‌‌‌‌​​​​‌‌‍felony offender is without merit. The People sustained their burden of proving, beyond a reasonable doubt, that the defendant previously was convicted of a felony upon which his adjudication as a second felony offender was based (see CPL 400.21; People v Williams, 38 AD3d 576, 577 [2007]; People v Myron, 28 AD3d 681, 684 [2006], cert denied 549 US 1326 [2007]). The defendant failed to establish that his 2005 felony conviction, which served as the predicate for his sentencing as a second felony offender in this case, ‍​​​​‌‌​‌​​​​​‌​​​​​‌‌‌‌​‌​‌​‌​‌​‌​​‌‌​‌​​‌‌​‌​​​​‌‌​​​‌‌‌​‌‌​‌​‌‌‌‌​‌‌​​‌​​‌‌​‌‌‌​​‌​​‌‌‌‌​​​​‌‌‍was obtained in violation of his federal constitutional rights (see CPL 400.21 [7] [b]; People v McDonald, 1 NY3d 109, 115 [2003]; People v White, 62 AD3d 916 [2009]; see also People v Molloy, 28 AD3d 681 [2006]). Prudenti, P.J., Mastro, Florio and Austin, JJ., concur.