PEOPLE v. DOMBROFF (2007)

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Pitts, J.), rendered September 3, 2003, convicting him of grand larceny in the second degree (five counts), grand larceny in the third degree (twelve counts), and scheme to defraud in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that the evidence was legally insufficient to sustain his conviction, and that the verdict of guilt was against the weight of the evidence.   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 beyond a reasonable doubt (see People v. Zuga, 23 A.D.3d 315, 805 N.Y.S.2d 306;  People v. Keyes, 298 A.D.2d 234, 748 N.Y.S.2d 557;  People v. Wachulewicz, 295 A.D.2d 169, 743 N.Y.S.2d 703).   Moreover, resolution of issues of credibility is primarily a question to be determined by the jury, which saw and heard the witnesses, and its determination should be accorded great deference on appeal (see People v. Romero, 7 N.Y.3d 633, 644-645, 826 N.Y.S.2d 163, 859 N.E.2d 902;  People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828).   Upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d at 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

 Contrary to the defendant's contention, the trial court provided a meaningful response to notes from the deliberating jury seeking supplemental instructions regarding the definitions of intent, defraud, and larceny (see People v. Lourido, 70 N.Y.2d 428, 435, 522 N.Y.S.2d 98, 516 N.E.2d 1212;  People v. Almodovar, 62 N.Y.2d 126, 131, 476 N.Y.S.2d 95, 464 N.E.2d 463;  People v. Malloy, 55 N.Y.2d 296, 298, 449 N.Y.S.2d 168, 434 N.E.2d 237, cert. denied 459 U.S. 847, 103 S.Ct. 104, 74 L.Ed.2d 93;  People v. Pannell, 287 A.D.2d 659, 659-660, 731 N.Y.S.2d 750).   In response to the jury's notes, the trial court providently exercised its discretion by rereading its full initial instructions on the definitions of intent, defraud, and larceny, as the initial instructions were proper, and the jury indicated its satisfaction with the response (see People v. Kirk, 16 A.D.3d 230, 790 N.Y.S.2d 669;  People v. Riley, 254 A.D.2d 78, 680 N.Y.S.2d 203;  People v. Shanks, 207 A.D.2d 710, 616 N.Y.S.2d 591;  People v. Saltares, 184 A.D.2d 740, 585 N.Y.S.2d 90).

 The defendant's contention that his motion for a mistrial based on juror misconduct was improperly denied is without merit.   It is well settled that “not every misstep by a juror rises to the inherently prejudicial level at which reversal is required automatically” (People v. Clark, 81 N.Y.2d 913, 914, 597 N.Y.S.2d 646, 613 N.E.2d 552).  “Because juror misconduct can take many forms, no ironclad rule of decision is possible.   In each case the facts must be examined to determine the nature of the material placed before the jury and the likelihood that prejudice would be engendered” (People v. Simon, 224 A.D.2d 458, 458, 638 N.Y.S.2d 113).   Upon learning of various “postings” by the jurors in the jury room during a trial recess the trial court, with the approval of the defense counsel and the prosecutor, properly carried out a complete inquiry of each juror and alternate individually, ascertaining the nature of the matters posted and any possible discussions and the extent of those discussions, as well as whether the postings and discussions affected each juror's ability to assess the credibility of witnesses, and whether each juror had formed an opinion as to the defendant's guilt or innocence (see People v. Simon, 224 A.D.2d at 458, 638 N.Y.S.2d 113).   The jurors' responses established that they had not been prejudiced by the postings or any discussions, and had not made any premature determination as to the guilt or innocence of the defendant.   As the trial court's assessment “is afforded great weight because of its unique position to observe” the jurors (People v. Simon, 224 A.D.2d at 458, 638 N.Y.S.2d 113), its determination that a mistrial was not warranted will not be disturbed.

 The defendant contends that the admission into evidence of hearsay testimony and documentary evidence of certain statements by a nontestifying witness deprived him of his constitutional right to confrontation.   However, since the defendant did not specifically argue that the complained-of testimony and documentary evidence deprived him of his right to confrontation, that argument is unpreserved for appellate review (see CPL 470.05[2];  People v. Johnson, 43 A.D.3d 288, 842 N.Y.S.2d 369).   In any event, the defendant's right to confrontation was not violated by admission of the subject statements into evidence because they were not testimonial in nature (see Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224;  Crawford v. Washington, 541 U.S. 36, 56, 124 S.Ct. 1354, 158 L.Ed.2d 177;  People v. Meekins, 34 A.D.3d 843, 828 N.Y.S.2d 83).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 83, 455 N.Y.S.2d 675).

The defendant's remaining contentions are without merit.