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People v. Rodriguez

Supreme Court of New York, Second Department

January 15, 2020

The People, etc., respondent,
v.
Rafaelito Rodriguez, appellant. Ind. No. 1031/17

          Argued - October 11, 2019

         D61721 Y/htr

          Laurette D. Mulry, Riverhead, NY (Felice B. Milani of counsel), for appellant.

          Timothy D. Sini, District Attorney, Riverhead, NY (Grazia DiVincenzo and Guy Arcidiacono of counsel), for respondent.

          WILLIAM F. MASTRO, J.P., COLLEEN D. DUFFY, BETSY BARROS, VALERIE BRATHWAITE NELSON, JJ.

          DECISION & ORDER

         Appeal by the defendant from a judgment of the County Court, Suffolk County (Timothy P. Mazzei, J.), rendered March 14, 2018, convicting him of burglary in the first degree (three counts), criminal use of a firearm in the first degree, criminal possession of a weapon in the second degree, and endangering the welfare of a child (three counts), upon a jury verdict, and imposing sentence.

         ORDERED that the judgment is affirmed.

         The defendant's challenges to the legal sufficiency of the evidence supporting his convictions are unpreserved for appellate review (see CPL 470.05[2]; People v Hawkins, 11 N.Y.3d 484, 492). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620, 621), we find that it was legally sufficient to establish the defendant's guilt 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]; People v Danielson, 9 N.Y.3d 342, 348), we nevertheless accord great deference to the jury'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, 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 the County Court committed a mode of proceedings error in its handling of a jury note (see CPL 310.30; People v O'Rama, 78 N.Y.2d 270) requesting, inter alia, to review a portion of a surveillance video in slow motion is without merit (see People v Alcide, 21 N.Y.3d 687, 694). Contrary to the defendant's contention, defense counsel received advance notice of the contents of the jury note, as a copy of it was provided to him before the jury entered the courtroom and the court responded to the note. Since counsel failed to discuss a possible response to the note or to object to the court's response at a time when any error could have been cured, the defendant's claim is unpreserved for appellate review (see People v Williams, 21 N.Y.3d 932, 935). In any event, the record demonstrates that the court fulfilled its core responsibilities in responding to the jury's note (see People v Heron, 130 A.D.3d 754, 756; People v Cherry, 127 A.D.3d 879, 880-881).

         Moreover, contrary to the defendant's contention, the testimony of one of the complaining eyewitnesses did not constitute improper bolstering, but was properly admitted to establish the commission of the crimes as well as the events that led to the defendant's arrest and the recovery of the firearm (see People v Rosario, 100 A.D.3d 660, 661).

         The sentence imposed was not excessive (see People v Suitte, 90 A.D.2d 80).

         The defendant's remaining contentions are without merit.

          MASTRO, JP, DUFFY, BARROS and ...


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