People v. Fedyk

202 A.D.3d 819

158 N.Y.S.3d 886 (Mem)

The PEOPLE, etc., respondent,

v.Natalya FEDYK, appellant.

2019–02128

Ind. No. 130/18

Supreme Court, Appellate Division, Second Department, New York.

Argued—November 5, 2021

February 9, 2022

Patricia Pazner, New York, NY (Hannah Kon of counsel), for appellant.

Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart and George D. Adames of counsel), for respondent.

HECTOR D. LASALLE, P.J., COLLEEN D. DUFFY, WILLIAM G. FORD, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (William Garnett, J.), rendered February 5, 2019, convicting her of burglary in the second degree as a hate crime and burglary in the second degree, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the evidence was legally insufficient to establish her commission of a hate crime because the People failed to demonstrate that she was motivated by prejudice, bias, or animus toward the complainant's protected class is unpreserved for appellate review (see CPL 470.05[2] ; People v. Kolupa, 13 N.Y.3d 786, 887 N.Y.S.2d 536, 916 N.E.2d 430 ; People v. Faraone, 186 A.D.3d 1394, 128 N.Y.S.3d 867 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of burglary in the second degree as a hate crime beyond a reasonable doubt. Defense counsel was not ineffective for failing to preserve this contention (see People v. Caban, 5 N.Y.3d 143, 800 N.Y.S.2d 70, 833 N.E.2d 213 ; People v. Shoshi, 177 A.D.3d 779, 113 N.Y.S.3d 139 ).

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, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), 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, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ). 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, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).

The defendant's challenge to the constitutionality of Penal Law § 480.05 is not properly before us because it was first advanced in her reply brief on appeal (see People v. Ford, 69 N.Y.2d 775, 777, 513 N.Y.S.2d 106, 505 N.E.2d 615 ; Simon v. Mehryari, 16 A.D.3d 664, 666, 792 N.Y.S.2d 543 ; DeMeo v. New York City Tr. Auth., 174 A.D.2d 596, 598, 571 N.Y.S.2d 304 ).

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