The People, etc., respondent, v. Lloyd Kurth, appellant. (2011)

Argued-February 15, 2011

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Orange County (Neary, J.), rendered December 22, 2008, convicting him of grand larceny in the fourth degree, criminal possession of stolen property in the fourth degree, and official misconduct, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is affirmed.

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), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383, 410, cert. denied 542 U.S. 946;  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).

The defendant failed to preserve for appellate review his contention that the grand jury proceeding was defective because it failed “to conform to the requirements of [CPL article 190] to such degree that the integrity thereof is impaired and prejudice to the defendant may result” (CPL 210.35[5];  see People v. Brown, 81 N.Y.2d 798;  People v. Bryan, 50 AD3d 1049, 1050;  People v. Workman, 277 A.D.2d 1029, 1031).   In any event, the alleged improper conduct on the part of the prosecutor did not impair the integrity of the grand jury proceeding or prejudice the defendant (see CPL 210.35[5];  People v. Brownlee, 121 A.D.2d 553, 554;  cf.  People v. Huston, 88 N.Y.2d 400, 409).

Furthermore, the defendant's contention that certain records of the Orange County Sheriff's Department involving a firearm receipt and evidence logbook were improperly admitted into evidence under the business records exception to the hearsay rule is unpreserved for appellate review (see CPL 470.05[2];  People v. Verrilli, 69 AD3d 963, 964;  People v. Sprosta, 49 AD3d 784, 785) and, in any event, is without merit.   Insofar as the documents constituted hearsay evidence, the People properly established a foundation for the admission of the documents as business records (see CPLR 4518[a];  People v. Guidice, 83 N.Y.2d 630, 635;  Matter of Leon RR, 48 N.Y.2d 117, 122;  Johnson v. Lutz, 253 N.Y. 124;  People v. Bell, 286 A.D.2d 443;  cf.   People v. Kennedy, 68 N.Y.2d 569, 579- 580).   Furthermore, contrary to the defendant's contention, admission of the documents did not violate his Sixth Amendment right to confront his accusers (see People v. Dail, 69 AD3d 873, 874;  see also Melendez-Diaz v. Massachusetts, 557 U.S. _, 129 SCt 2527, 2539-2540;  Crawford v. Washington, 541 U.S. 36, 56).   Moreover, the defendant's contention that he was deprived of the effective assistance of counsel by virtue of trial counsel's failure to object to the admission of these documents into evidence is without merit, as “[t]here can be no denial of effective assistance of trial counsel arising from counsel's failure to ‘make a motion or argument that has little or no chance of success' ” (People v. Caban, 5 NY3d 143, 152, quoting People v. Stultz, 2 NY3d 277, 287;  see People v. Contant, 77 AD3d 967, 969;  People v. Kent, 79 AD3d 52, 71).

ANGIOLILLO, J.P., CHAMBERS, AUSTIN and MILLER, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court