People v. Smith
949 N.Y.S.2d 190
N.Y. App. Div.
2012
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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v PATRICK RICARDO SMITH, Appellant.

Supreme Court, Appellate Division, Second Department, New York

[949 NYS2d 190]

Appeal by the defendant from a judgment of the County Court, Westchester County (DiBella, J.), rendered April 13, 2007.

Appeal by the defendant from a judgment of the County Court, Westchester County (DiBella, J.), rendered April 13, 2007, convicting him of robbery in the first degree, robbery in the second degree, grand larceny in the second degree, and criminal mischief in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant‘s contention, the indictment was not jurisdictionally defective, as the counts of the indictment cited the applicable sections of the Penal Law and sufficiently tracked the language thereof to afford the defendant fair notice of the charges against him (see CPL 200.50 [7] [a];

;
).

The defendant‘s challenge to the racial composition of the jury panel was waived by his failure to make that challenge in writing prior to the selection of the jury (see CPL 270.10 [2];

;
;
;
). The County Court properly denied the defendant‘s first Batson challenge (see
) because the defendant failed to meet his burden of demonstrating a prima facie case of discrimination (see
;
;
;
;
). The County Court also properly denied the defendant‘s second Batson challenge. The County Court‘s determination that the prosecutor‘s race-neutral explanation for excluding a prospective African-American juror was nonpretextual is entitled to deference on appeal and should not be disturbed where, as here, it is supported by the record (see
, affd
;
).

Viewing the evidence in the light most favorable to the prosecution (see

), we find that it was legally sufficient to establish the defendant‘s guilt of all the crimes 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];
), we nevertheless accord great deference to the factfinder‘s opportunity to view the witnesses, hear the testimony, and observe demeanor (see
, cert denied
;
). Upon reviewing the record here, we are satisfied that the verdicts of guilt as to all the crimes was not against the weight of the evidence (see
).

The prosecution established a sufficient chain of custody of the forensic evidence recovered from the crime scene, and the prosecution witnesses provided reasonable assurances of the identity and unchanged condition of the evidence between its recovery and the trial (see

;
;
;
). Any deficiencies in the chain of custody went only to the weight to be accorded the evidence, not its admissibility (see
;
;
).

There is no merit to the defendant‘s claim that his alleged exclusion from a number of sidebar bench conferences resulted in a violation of his fundamental right to be present at all material stages of trial. The record is “insufficient to establish facts necessary to meet the defendant‘s burden of showing that he was absent from a material stage of the trial” (

; see
;
, affd
).

The defendant contends that County Court erred in admitting into evidence a letter that he wrote to a fellow inmate. However, any error in the admission of the letter was harmless, as the evidence of the defendant‘s guilt, without reference to the error, was overwhelming, and there is no significant probability that the error contributed to the defendant‘s conviction (see

;
).

The defendant‘s contention, raised in his pro se supplemental brief, that he was deprived of the effective assistance of counsel, is based on matter dehors the record, and cannot be reviewed on direct appeal (see

).

The sentence imposed was not excessive (see

).

The defendant‘s remaining contentions, including those contained in his pro se supplemental brief, are unpreserved for appellate review and, in any event, are without merit. Rivera, J.P., Florio, Eng and Roman, JJ., concur.