PEOPLE v. SHEAR (2020)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Stephen L. Braslow, J.), rendered December 14, 2018, convicting him of driving while intoxicated, as a felony, in violation of Vehicle and Traffic Law § 1192(3), aggravated unlicensed operation of a motor vehicle in the first degree, reckless endangerment in the second degree, and speeding, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the grand jury proceedings were defective within the meaning of CPL 210.35(5) is unpreserved for appellate review (see CPL 470.05[2];  People v. Sicilianonunez, 172 A.D.3d 912, 913, 100 N.Y.S.3d 309).  In any event, the defendant's contention is without merit (see People v. Adessa, 89 N.Y.2d 677, 679, 684, 657 N.Y.S.2d 863, 680 N.E.2d 134).

The defendant failed to preserve for appellate review his contention that his convictions were not supported by legally sufficient evidence (see CPL 470.05[2];  People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946).  In any event, 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.  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 342, 348, 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, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053;  People v. Bleakley, 69 N.Y.2d 490, 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).

We agree with the County Court's determination allowing the admission into evidence of recordings of telephone calls the defendant made during his pretrial detention at the Suffolk County Jail. There is no merit to the defendant's claim that the admission of the recordings was improper because he did not consent to the release of the recordings to the prosecution, as the defendant had no reasonable expectation of privacy in the content of the recorded communications (see People v. Diaz, 33 N.Y.3d 92, 99–100, 98 N.Y.S.3d 544, 122 N.E.3d 61;  People v. Utley, 170 A.D.3d 757, 758, 93 N.Y.S.3d 585;  People v. Koonce, 111 A.D.3d 1277, 1279, 974 N.Y.S.2d 207).  Furthermore, the admission of the recordings did not violate the defendant's right to counsel under the State and Federal Constitutions (see People v. Johnson, 27 N.Y.3d 199, 205–206, 32 N.Y.S.3d 34, 51 N.E.3d 545;  People v. Utley, 170 A.D.3d at 758, 93 N.Y.S.3d 585), or his right to participate in the preparation of his own defense (see People v. Utley, 170 A.D.3d at 758, 93 N.Y.S.3d 585;  People v. Cisse, 149 A.D.3d 435, 436, 53 N.Y.S.3d 614, affd 32 N.Y.3d 1198, 96 N.Y.S.3d 165, 120 N.E.3d 364).

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

The defendant's remaining contentions are without merit.

MASTRO, J.P., ROMAN, MALTESE and BARROS, JJ., concur.