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People v. Sanabria

Supreme Court of New York, Second Department

October 23, 2013

The People of the State of New York, respondent,
v.
Eric Sanabria, appellant. Ind. No. 10-00468

Mark Diamond, New York, N.Y., for appellant.

Francis D. Phillips II, District Attorney, Middletown, N.Y. (Robert H. Middlemiss of counsel), for respondent.

REINALDO E. RIVERA, J.P., PLUMMER E. LOTT, SANDRA L. SGROI, ROBERT J. MILLER, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Orange County (De Rosa, J.), rendered July 13, 2011, convicting him of criminal possession of stolen property in the fourth degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the evidence was legally insufficient to support his convictions is unpreserved for appellate review, as defense counsel made only a general motion for a trial order of dismissal based upon the People's alleged failure to make out a prima facie case (see CPL 470.05; People v Hawkins, 11 N.Y.3d 484, 491-492; People v Chance, 105 A.D.3d 758, 759; People v Hill, 72 A.D.3d 702, 705). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Additionally, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 N.Y.3d 342), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 N.Y.3d 383, 410, cert denied 542 U.S. 946; People v Bleakley, 69 N.Y.2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 N.Y.3d 633).

The defendant's contention that he was deprived of the right to a fair trial by certain comments made by the prosecutor on summation is unpreserved for appellate review, as the defendant did not object to the remarks at issue (see CPL 470.05[2]; People v Kinard, 96 A.D.3d 976). In any event, the challenged remarks constituted fair comment on the evidence and the reasonable inferences to be drawn therefrom, or permissible rhetorical comment (see People v Ashwal, 39 N.Y.2d 105, 109-110; People v Gross, 88 A.D.3d 905, 906).

The defendant has failed to establish that he was deprived of the effective assistance of counsel (see People v Benevento, 91 N.Y.2d 708; People v Baldi, 54 N.Y.2d 137).

The defendant's contention that the County Court failed to comply with CPL 400.21 before sentencing him as a second felony offender is unpreserved for appellate review (see People v Jackson, 87 A.D.3d 552, 553-554; People v Csoke, 11 A.D.3d 631; People v Todd, 306 A.D.2d 504, 505). In any event, the County Court substantially complied with the requirements of CPL 400.21 (see People v Bouyea, 64 N.Y.2d 1140, 1142), and the court's failure to specifically ask the defendant if he wished to controvert the allegations in the predicate felony statement was harmless, since the defendant admitted the allegations in the statement, there is no indication that the defendant intended to claim that his prior conviction was unconstitutionally obtained, and he has not alleged any grounds to controvert it (see People v Chase, 101 A.D.3d 1141; People v McAllister, 47 A.D.3d 731; People v Flores, 40 A.D.3d 876).

RIVERA, J.P., LOTT, SGROI and MILLER, JJ., concur.


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