PEOPLE v. BONDS (2018)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mangano, Jr., J.), rendered August 14, 2013, convicting him of murder in the first degree, conspiracy in the second degree, criminal possession of a weapon in the second degree, intimidating a witness in the first degree, and tampering with a witness in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the Supreme Court did not improvidently exercise its discretion in declining to discharge a sworn juror who, prior to empanelment, stated that she was experiencing anxiety related to her employment, since the court's inquiry established that the juror's concerns would not adversely impact her ability to serve as a fair and impartial juror (see CPL 270.15[3];  People v. DeFreitas, 116 A.D.3d 1078, 1080–1081, 984 N.Y.S.2d 423;  People v. Morales, 36 A.D.3d 631, 632, 831 N.Y.S.2d 77;  People v. Echevarria, 30 A.D.3d 537, 816 N.Y.S.2d 364;  cf.  People v. Wells, 63 A.D.3d 967, 968, 882 N.Y.S.2d 150, affd 15 N.Y.3d 927, 915 N.Y.S.2d 896, 941 N.E.2d 739;  People v. Huntley, 237 A.D.2d 533, 534, 655 N.Y.S.2d 580;  People v. Bolden, 197 A.D.2d 528, 529, 602 N.Y.S.2d 212;  People v. Vasquez, 141 A.D.2d 880, 881, 530 N.Y.S.2d 159).  The defendant's related assertion that his trial counsel was not afforded an adequate opportunity to question the juror is without merit.

The defendant's contention, raised in his pro se supplemental brief, that the evidence was legally insufficient to support the convictions because the testimony of his accomplice was not sufficiently corroborated is unpreserved for appellate review (see CPL 470.05[2] ) and, in any event, without merit (see People v. Caban, 5 N.Y.3d 143, 149, 800 N.Y.S.2d 70, 833 N.E.2d 213;  People v. Steinberg, 79 N.Y.2d 673, 683, 584 N.Y.S.2d 770, 595 N.E.2d 845;  People v. Montefusco, 44 A.D.3d 879, 880, 843 N.Y.S.2d 671).  Further, 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 beyond a reasonable doubt (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

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 N.Y.3d at 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1), 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 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053;  People v. Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  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 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The defendant's contention, raised in his pro se supplemental brief, that the Supreme Court failed to comply with the procedure for addressing jury notes set forth by the Court of Appeals in People v. O'Rama, 78 N.Y.2d 270, 277–278, 574 N.Y.S.2d 159, 579 N.E.2d 189 is unpreserved for appellate review (see People v. Ramirez, 15 N.Y.3d 824, 825–826, 909 N.Y.S.2d 1, 935 N.E.2d 791;  People v. Fabers, 133 A.D.3d 616, 617, 20 N.Y.S.3d 89).  Contrary to the defendant's contention, the alleged failure to comply with the O'Rama procedure did not constitute a mode of proceedings error which would obviate the preservation requirement because it is evident from the record that the court fulfilled its core responsibilities under CPL 310.30 by providing defense counsel with meaningful notice of the content of the jury note (see People v. Nealon, 26 N.Y.3d 152, 20 N.Y.S.3d 315, 41 N.E.3d 1130;  People v. Gibson, 147 A.D.3d 779, 780, 47 N.Y.S.3d 337;  People v. Deokoro, 137 A.D.3d 1297, 1298, 27 N.Y.S.3d 390;  People v. Fabers, 133 A.D.3d at 618, 20 N.Y.S.3d 89).  In any event, the contention is without merit.

MASTRO, J.P., ROMAN, MILLER and CONNOLLY, JJ., concur.