People v. Gambino

211 A.D.3d 850

179 N.Y.S.3d 359

The PEOPLE, etc., respondent,

v.Dennis GAMBINO, appellant.

2019–07246

(Ind. No. 193/15)

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

Argued—November 15, 2022

December 14, 2022

Jonathan Rosenberg, PLLC, Brooklyn, NY, for appellant.

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

BETSY BARROS, J.P., ROBERT J. MILLER, JOSEPH A. ZAYAS, LILLIAN WAN, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Alexander Jeong, J.), rendered June 10, 2019, convicting him of burglary in the second degree, grand larceny in the fourth degree, and criminal possession of stolen property in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's challenge to the legal sufficiency of the evidence supporting his convictions of burglary in the second degree and grand larceny in the fourth degree is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). 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 and grand larceny in the fourth degree 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, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), 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, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt as to those convictions 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 record demonstrates that the Supreme Court followed the procedures enunciated in CPL 310.30 (see People v. Nealon, 26 N.Y.3d 152, 161, 20 N.Y.S.3d 315, 41 N.E.3d 1130 ; People v. O'Rama, 78 N.Y.2d 270, 277–278, 574 N.Y.S.2d 159, 579 N.E.2d 189 ; People v. Herring, 189 A.D.3d 1614, 1615, 138 N.Y.S.3d 147 ). Further, the jury's verdict with respect to burglary in the second degree was not repugnant (see People v. France, 172 A.D.3d 900, 98 N.Y.S.3d 440 ), and the purported repugnant verdict with respect to grand larceny in the fourth degree and criminal possession of stolen property in the fourth...