SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
December 9, 2008
THE PEOPLE, ETC., RESPONDENT,
DAVID SAYLES, APPELLANT.
Appeal by the defendant from a judgment of the County Court, Rockland County (Nelson, J.), rendered January 26, 2006, as amended February 2, 2006, convicting him of burglary in the second degree and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
DAVID S. RITTER, J.P., ANITA R. FLORIO, HOWARD MILLER and EDWARD D. CARNI, JJ.
(Ind. No. 05-00061)
DECISION & ORDER
ORDERED that the judgment, as amended, is affirmed.
The defendant's contention that the People failed to establish his guilt by legally sufficient evidence is unpreserved for appellate review (see CPL 470.05; People v Gray, 86 NY2d 10, 19-21). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621), and giving the People the benefit of every reasonable inference which could be drawn from the circumstantial evidence adduced (see People v Lewis, 64 NY2d 1111, 1112; People v Way, 59 NY2d 361, 365), we find that the evidence was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633).
"'[T]he decision to declare a mistrial rests within the sound discretion of the trial court which is in the best position to determine if this drastic remedy is truly necessary to protect the defendant's right to a fair trial'" (People v Knorr, 284 AD2d 411, 412, quoting People v Williams, 264 AD2d 745, 746; see also People v Rice, 75 NY2d 929). Under the circumstances here, the trial court providently exercised its discretion in denying the defendant's motion for a mistrial based on a remark made by a venire person who had been dismissed for cause during jury selection.
The defendant's contention, raised in his supplemental pro se brief, that he was not present at the restitution hearing, is belied by the record. The defendant's appearance was noted on the record.
RITTER, J.P., FLORIO, MILLER and CARNI, JJ., concur.
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