People v. Mitchell

188 A.D.3d 1101

136 N.Y.S.3d 101

The PEOPLE, etc., respondent,

v.Stephen MITCHELL, appellant.

2014–05910

Ind. No. 4743/10

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

Argued—September 14, 2020

November 18, 2020

Stephen T. Mitchell, named herein as Stephen Mitchell, New York, NY, appellant pro se.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jean M. Joyce of counsel), for respondent.

RUTH C. BALKIN, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (William E. Garnett, J.), rendered May 23, 2014, convicting him of grand larceny in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

A grand jury indicted the defendant, an attorney, for grand larceny in the second degree ( Penal Law § 155.40[1] ), based upon the defendant's alleged theft of the proceeds from the sale of certain real property belonging to the estate of Charles Brown (hereinafter the estate). At the jury trial, the testimony and evidence presented by the People established, inter alia, that the defendant was retained to represent the estate in the sale of the subject property, which was sold in December 2005, that the defendant received a check made payable to the executor of the estate in the sum of $401,082.50, at the closing on the property, and thereafter received a second check made payable to the estate in the sum of $10,000, and that the defendant deposited those checks in his attorney IOLA account which, prior to the sale of the property, had a balance of $29.27. The evidence also demonstrated that between December 2005 and March 2006, the defendant transferred different amounts from his attorney IOLA account into his various other bank accounts, that as of March 2006, the balance in the defendant's IOLA account was $411.77, and that the estate did not receive any of the proceeds from the sale of the property. Following the jury trial, the defendant was convicted of grand larceny in the second degree.

The defendant's contention that the grand jury proceeding was defective within the meaning of CPL 210.35(5) based on the prosecutor's failure to instruct the grand jury with regard to certain provisions of the Mental Hygiene Law and the EPTL is, as the defendant concedes, unpreserved for appellate review (see CPL 470.05[2] ; People v. Tunit, 149 A.D.3d 1110, 1110, 53 N.Y.S.3d 649 ; People v. Forde, 140 A.D.3d 1085, 1087, 34 N.Y.S.3d 477 ). In any event, this contention is without merit inasmuch as the prosecutor's failure to provide that instruction did not impair the integrity of the grand jury proceeding or give rise to the possibility of prejudice to the defendant (see People v. Sealy, 181 A.D.3d 893, 894, 119 N.Y.S.3d 884 ; People v. Burch, 108 A.D.3d 679, 680–681, 968 N.Y.S.2d 592 ; People v. Kurth, 82 A.D.3d 905, 906, 918 N.Y.S.2d 536 ).

Viewing the evidence presented at trial 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 there was legally sufficient direct and circumstantial evidence that the defendant, without permission or authority, used a portion of the sale proceeds in excess of $50,000, for purposes unrelated to the payment of the debts and expenses of the estate, to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ; People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).

Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in limiting the defendant's cross-examination of one of the People's witnesses since the proposed line of questioning was only marginally relevant and concerned collateral issues (see People v. Elmore, 175 A.D.3d 1423, 1423, 106 N.Y.S.3d 612 ; People v. Best, 152 A.D.3d 617, 618, 55 N.Y.S.3d 661 ; People v. Frumusa, 134 A.D.3d 1503, 1504, 22 N.Y.S.3d 737, affd 29 N.Y.3d 364, 57 N.Y.S.3d 103, 79 N.E.3d 495...