PEOPLE v. ERBER (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Donald Leo, J.), rendered February 6, 2020, convicting him of grand larceny in the second degree, grand larceny in the third degree (four counts), and scheme to defraud in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was convicted, after a jury trial, of grand larceny in the second degree, four counts of grand larceny in the third degree, and scheme to defraud in the first degree arising out of a rental scheme in which the defendant accepted rent monies from not-for-profit organizations for temporary military veteran housing that was purported to be permanent, fraudulently secured over $3,000 from each of four not-for-profit organizations for this purpose, and fraudulently secured $200,000 from an individual as a purported investment in his real estate scheme.

The defendant's contention that the evidence was legally insufficient to support his convictions is unpreserved for appellate review (see CPL 470.05[2];  People v. Hawkins, 11 NY3d 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 NY3d 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 NY3d 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 NY3d 633, 644).

The defendant's contention that the evidence before the grand jury was legally insufficient to indict him for grand larceny in the second degree is not reviewable on this appeal because the defendant's guilt of this crime was proven beyond a reasonable doubt at trial (see CPL 210.30[6];  People v. Hengjun Chao, 217 AD3d 777, 778).

The defendant's contention that he was deprived of the effective assistance of counsel is without merit (see Strickland v. Washington, 466 U.S. 668;  People v. Benevento, 91 N.Y.2d 708, 713).  Counsel cannot be deemed ineffective for failing to advance an argument that had “little or no chance of success” (People v. Stultz, 2 NY3d 277, 287;  see People v. Caban, 5 NY3d 143, 152).

The defendant's contention that testimonial and documentary evidence of certain allegations made against a complainant was not admissible is unpreserved for appellate review, as no timely objection to the evidence was made (see CPL 470.05[2];  People v. Jeffriesel, 209 AD3d 1034, 1036).  In any event, the defendant's contention is without merit, as “[w]hatever prejudicial effect the evidence in question may have had on the defendant was substantially outweighed by its probative value” (People v. Louis, 192 A.D.2d 558, 559).  Moreover, any error in admitting such evidence was harmless, as there was overwhelming evidence of the defendant's guilt and no significant probability that the error contributed to his convictions (see People v. Crimmins, 36 N.Y.2d 230, 241–242).

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

The defendant's remaining contentions are without merit.

DUFFY, J.P., DOWLING, HOM and QUIRK, JJ., concur.