PEOPLE v. VELASQUEZ (2019)

DECISION & ORDER

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by providing that the sentences shall run concurrently with each other;  as so modified, 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, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of burglary in the second degree.  Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt on that count was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 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).

During the trial, the County Court was notified that a juror had expressed apprehension about the manner in which the defendant was looking at the jurors.  The court spoke to the juror in the presence of counsel and the defendant.  The court also later spoke with each juror individually.  The court opined that the defendant's physical features and the manner in which the defendant tilted his head when he looked around the courtroom may have led the juror to feel apprehension.  Nevertheless, the court found that the defendant had not behaved inappropriately in the courtroom “through his demeanor, through his actions, or otherwise.”  In “an abundance of caution,” the court discharged the juror who had expressed apprehension, but it declined to declare a mistrial.  Contrary to the defendant's contention, the court did not improvidently exercise its discretion in denying his request for a mistrial.  The court conducted an appropriate inquiry, after which it determined that the remaining jurors could remain fair and impartial (see People v. Gobardhan, 150 A.D.3d 882, 883, 56 N.Y.S.3d 118;  People v. Morrison, 94 A.D.3d 913, 913–914, 941 N.Y.S.2d 521).  We see no basis on which to overturn the court's determination that a mistrial was not warranted (see People v. Gobardhan, 150 A.D.3d at 883, 56 N.Y.S.3d 118).

Contrary to the defendant's contention, there is no evidence in the record indicating that the County Court penalized the defendant for exercising his right to trial (see People v. Ramirez, 157 A.D.3d 718, 720, 69 N.Y.S.3d 76).  Nevertheless, we find that the sentence imposed was excessive to the extent indicated herein.

The defendant's remaining contentions are without merit.

BALKIN, J.P., AUSTIN, CONNOLLY and CHRISTOPHER, JJ., concur.