People v. Woodrow
936 N.Y.S.2d 778
N.Y. App. Div.
2012
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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v DAVID WOODROW, Appellant.

Appellate Division of the Supreme Court of New York, Third Department

[936 NYS2d 778]

Rose, J.

Rose, J.

Initially, defendant contends that the proceedings before County Court were a nullity because the indictment was transferred to Supreme Court but then tried in County Court without any order transferring the case back to County Court. We cannot agree. Defendant‘s reliance on is misplaced as it is based on former Code of Criminal Procedure § 22, which, in its current form (see CPL 230.10), has been “rendered obsolete by the constitutional provision vesting administrative supervision of the courts in the Chief Administrator of the Courts” (Preiser, Practice Commentaries, McKinney‘s Cons Laws of NY, Book 11A, CPL 230.10; see NY Const, art VI, § 28 [b]; 22 NYCRR 200.14). As a superior court, County Court had trial jurisdiction upon the filing of the indictment (see NY Const, art VI, § 11 [a]; CPL 1.20 [24]; 10.10 [2] [b]; 10.20 [1] [a]; 210.05; , lv denied ), and the error defendant alleges, namely, the lack of a transfer order or notation in the record transferring the case from Supreme Court back to County Court, “is not jurisdictional in nature and is waived if not timely raised” (; see , lv denied ). No challenge to the transfer having been made before the trial court, it was waived (see CPL 470.05 [2]; ; ).

Defendant next argues that the convictions for burglary in the first degree (see Penal Law § 140.30 [1], [3]) and possession of burglar‘s tools (see Penal Law § 140.35) are based on legally insufficient evidence because none of the witnesses was able to identify him as being present at the scene of the burglary. Again, we disagree. Three neighbors testified that they heard loud banging or the victim screaming and then observed a slender black male wearing a dark hooded sweatshirt with a dark bag leaving the house. They described the male leaving the house as having pulled the hood of the sweatshirt tightly around his face, exposing only the nose and part of the eyes. The witnesses also described him as wearing jeans and colorful sneakers, and having the bag slung across his shoulder in newsboy fashion with a light colored strap. Defendant was detained by the police within minutes on a nearby street and matched the description testified to by the neighbors, including having the hood on his sweatshirt pulled tightly around his face. The ax found on defendant was consistent with the hack marks on the partially destroyed door of the apartment, and a shell casing found on the second floor landing outside the apartment door matched defendant‘s gun, which was test fired and determined to be fully operable. A bullet hole consistent with having been fired from the door of the apartment was also located in the bathroom of the apartment. Viewing this evidence in a light most favorable to the People, a valid line of reasoning and permissible inferences support the jury‘s conclusion as to each of the burglary counts and the possession of burglar‘s tools (see , lv denied ; ; , lv denied ). Also, upon independent consideration of the evidence in a neutral light, we find that the verdicts are not against the weight of the evidence (see ; ; ).

As for defendant‘s claim of prosecutorial misconduct, most of the prosecutor‘s alleged misstatements were either properly dealt with by County Court‘s instructions to the jury or valid arguments as to the inferences the prosecutor believed the jury could draw from the evidence presented (see , lv denied ; , lv denied ). We do agree, however, that the prosecutor improperly speculated during her summation about a conversation she imagined that the defendant might have had (see ), and she inappropriately questioned a witness on redirect examination concerning defendant‘s viewing of the documentaries “Bowling For Columbine” and “Farenheit 9/11,” as well as defendant‘s opinion of former President Bush (see , lv denied ; , lv denied ). These questions, objected to by defense counsel, were, in our view, an irrelevant and improper effort by the prosecutor to rebut the witness‘s description of defendant as a nonviolent, religious person, and the court erred in permitting this line of questioning. Nevertheless, as the proof of defendant‘s guilt was overwhelming and these errors were isolated, they were harmless (see ; ; , lv denied ).

Finally, in light of the violent nature of the crime and the danger it posed to the community, we are not persuaded by defendant‘s argument that the sentence was harsh or excessive. Nor has he identified any extraordinary circumstances that would justify its reduction (see , lv denied ; , lv denied ). Defendant‘s remaining contentions have been considered and found to be either unpreserved or otherwise unavailing.

Peters, J.P., Kavanagh, McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed.