PEOPLE v. SCOTT (2022)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the third degree (Penal Law § 140.20) and petit larceny (§ 155.25). We affirm.

Defendant's contention that the prosecutor violated the duty of fair dealing and undermined the integrity of the grand jury proceeding by failing to divulge that two prosecution witnesses were accomplices who had received immunity for their testimony was not raised before defendant moved to set aside the verdict pursuant to CPL 330.30 (1) and is therefore unpreserved (see People v. Sheltray, 244 A.D.2d 854, 854-855, 665 N.Y.S.2d 224 [4th Dept. 1997], lv denied 91 N.Y.2d 897, 669 N.Y.S.2d 12, 691 N.E.2d 1038 [1998]; see generally People v. Davidson, 98 N.Y.2d 738, 739-740, 751 N.Y.S.2d 161, 780 N.E.2d 972 [2002]; People v. Padro, 75 N.Y.2d 820, 821, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [1990], rearg denied 75 N.Y.2d 1005, 557 N.Y.S.2d 312, 556 N.E.2d 1119 [1990], rearg dismissed 81 N.Y.2d 989, 599 N.Y.S.2d 797, 616 N.E.2d 152 [1993]). In any event, we conclude that defendant's contention is without merit inasmuch as the grand jury minutes reveal that the prosecutor properly divulged the witnesses’ immunity to the grand jury. Further, even assuming, arguendo, that the prosecutor erred in failing to properly divulge the witnesses’ immunity to the grand jury, we conclude that the single error does not constitute a pervasive, willful pattern of bias and misconduct such that the integrity of the grand jury proceeding was compromised (see People v. Wilcox, 194 A.D.3d 1352, 1355, 149 N.Y.S.3d 385 [4th Dept. 2021]; People v. Jones, 194 A.D.3d 1358, 1360, 148 N.Y.S.3d 558 [4th Dept. 2021], lv denied 37 N.Y.3d 1027, 153 N.Y.S.3d 424, 175 N.E.3d 450 [2021]; see generally People v. Thompson, 22 N.Y.3d 687, 699, 985 N.Y.S.2d 428, 8 N.E.3d 803 [2014], rearg denied 23 N.Y.3d 948, 987 N.Y.S.2d 601, 10 N.E.3d 1157 [2014]).

We reject defendant's further contention that County Court erred in denying his request to charge the jury that one of the prosecution's witnesses was an accomplice as a matter of law (see generally People v. Sage, 23 N.Y.3d 16, 24-25, 988 N.Y.S.2d 104, 11 N.E.3d 177 [2014]; People v. Basch, 36 N.Y.2d 154, 157, 365 N.Y.S.2d 836, 325 N.E.2d 156 [1975]). In light of the “ ‘different inferences [that] may reasonably be drawn’ from the evidence” (Sage, 23 N.Y.3d at 24, 988 N.Y.S.2d 104, 11 N.E.3d 177), the court properly submitted the issue of the witness's accomplice status to the jury (see People v. Kaminski, 90 A.D.3d 1692, 1692, 935 N.Y.S.2d 817 [4th Dept. 2011], lv denied 20 N.Y.3d 1100, 965 N.Y.S.2d 796, 988 N.E.2d 534 [2013]; People v. Brink, 78 A.D.3d 1483, 1485, 910 N.Y.S.2d 606 [4th Dept. 2010], lv denied 16 N.Y.3d 742, 917 N.Y.S.2d 623, 942 N.E.2d 1048 [2011], reconsideration denied 16 N.Y.3d 828, 921 N.Y.S.2d 192, 946 N.E.2d 180 [2011]).

Insofar as defendant contends that the People failed to present legally sufficient evidence establishing that he unlawfully entered a building or that he stole property, we conclude that he failed to preserve those contentions for our review (see CPL 470.05 [2]; see generally People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995]). Nevertheless, “ ‘we necessarily review the evidence adduced as to each of the elements of the crimes in the context of our review of defendant's challenge regarding the weight of the evidence’ ” (People v. Stepney, 93 A.D.3d 1297, 1298, 940 N.Y.S.2d 752 [4th Dept. 2012], lv denied 19 N.Y.3d 968, 950 N.Y.S.2d 120, 973 N.E.2d 218 [2012]).

Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]). Although “an acquittal would not have been unreasonable based on the questionable credibility of [certain prosecution witnesses] at trial” (Brink, 78 A.D.3d at 1484, 910 N.Y.S.2d 606), “ ‘matters of credibility are for the jury to resolve’ ” (People v. Pierce, 303 A.D.2d 966, 966, 758 N.Y.S.2d 444 [4th Dept. 2003], lv denied 100 N.Y.2d 565, 763 N.Y.S.2d 822, 795 N.E.2d 48 [2003]), and we cannot conclude on this record that the jury “failed to give the evidence the weight it should be accorded” (Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672; see People v. Lankford, 162 A.D.3d 1583, 1584, 78 N.Y.S.3d 852 [4th Dept. 2018], lv denied 32 N.Y.3d 1065, 89 N.Y.S.3d 120, 113 N.E.3d 954 [2018]; People v. Zafuto, 72 A.D.3d 1623, 1624, 902 N.Y.S.2d 269 [4th Dept. 2010], lv denied 15 N.Y.3d 758, 906 N.Y.S.2d 831, 933 N.E.2d 230 [2010]).

We conclude that the sentence is not unduly harsh or severe. Finally, we have reviewed defendant's remaining contentions and conclude that none warrants modification or reversal of the judgment.