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People v. Allen

Supreme Court of New York, Second Department

April 5, 2017

The People of the State of New York, respondent,
v.
Douglas Allen, appellant. Ind. No. 12-00228

          John F. Ryan, White Plains, NY (David B. Weisfuse of counsel), for appellant.

          Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Raffaelina Gianfrancesco and Steven A. Bender of counsel), for respondent.

          MARK C. DILLON, J.P., L. PRISCILLA HALL, JEFFREY A. COHEN, BETSY BARROS, JJ.

          DECISION & ORDER

         Appeal by the defendant from a judgment of the County Court, Westchester County (Zambelli, J.), rendered November 12, 2013, convicting him of promoting prostitution in the third degree, upon a jury verdict, and imposing sentence.

         ORDERED that the judgment is affirmed.

         The defendant contends that the prosecution failed to present legally sufficient evidence proving his guilt of promoting prostitution in the third degree and establishing that Westchester County had geographical jurisdiction over the offense. 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, and that he engaged in conduct constituting an element of the offense within Westchester County by a preponderance of the evidence (see CPL 20.40[1], 20.60[1]; People v Giordano, 87 N.Y.2d 441, 446; People v Tullo, 34 N.Y.2d 712, 714; People v Botta, 100 A.D.2d 311, 314). 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 N.Y.3d 342, 348), we nevertheless accord great deference to the fact-finder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 N.Y.3d 383, 410; People v Bleakley, 69 N.Y.2d 490). 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).

         Contrary to the defendant's contention, the prosecutor was not required to instruct the grand jury on territorial or geographical jurisdiction, as the evidence before the grand jury did not support a finding that either one was lacking (see People v Mitchell, 82 N.Y.2d 509, 514; People v Lancaster, 69 N.Y.2d 20, 28).

         Contrary to the defendant's contention, he did not put territorial jurisdiction "in issue" such that the County Court should have submitted it to the jury (People v McLaughlin, 80 N.Y.2d 466, 469-472; see People v Wright, 243 A.D.2d 746; cf. People v Thomas, 124 A.D.3d 56, 59).

         The County Court providently exercised its discretion in denying the defendant's request to question prospective jurors as to their attitudes or knowledge of matters of law (see People v Boulware, 29 N.Y.2d 135, 141; People v Robinson, 110 A.D.3d 1010).

         The County Court adequately instructed the jury on the correct standards applicable to determining whether the People established geographical jurisdiction (see People v Echevarria, 21 N.Y.3d 1, 21; People v Umali, 10 N.Y.3d 417, 427).

         The County Court's inclusion of a substantive instruction not authorized by CPL 310.20(2) on the verdict sheet did not constitute reversible error, as defense counsel was shown the verdict sheet before it was submitted to the jury and initialed it without voicing any objection and, therefore, his consent is implied (see People v Bjork, 105 A.D.3d 1258, 1264; People v Johnson, 96 A.D.3d 1586, 1587; People v Spruill, 245 A.D.2d 534, 535). The prosecutor did not present any evidence of an uncharged crime or prior bad act of the defendant (cf. People v Hudy, 73 N.Y.2d 40, 54; People v Alvino, 71 N.Y.2d 233, 241).

         The defendant's remaining contentions are without merit.

          DILLON, J.P., HALL, COHEN and ...


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