PEOPLE v. DIMMIE

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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., Respondent, v. Levar DIMMIE, Appellant.

Decided: October 26, 1998

Before O'BRIEN, J.P., and JOY, FRIEDMANN and GOLDSTEIN, JJ. Kevin D. McLoone, Scarsdale, for appellant. Jeanine Pirro, District Attorney, White Plains (John M. Collins and Mary E. Costello, of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Westchester County (Leavitt, J.), rendered January 6, 1997, convicting him of robbery in the first degree and grand larceny in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Viewing the evidence in the light most favorable to the People (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.   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5] ).

 The defendant contends that the trial court erred in denying his challenge for cause of three prospective jurors.   However, the defendant did not exhaust his peremptory challenges.   Thus, he was not prejudiced by having to expend three of his challenges to excuse the jurors in question (see, e.g., People v. Hewitt, 189 A.D.2d 781, 592 N.Y.S.2d 400).   In any event, the responses of the subject jurors to the defense counsel's inquiries did not rise to the level of actual bias or otherwise indicate that they would be unable to render an impartial verdict (see, People v. Hernandez, 222 A.D.2d 696, 697, 636 N.Y.S.2d 74;  People v. Archer, 210 A.D.2d 241, 242, 619 N.Y.S.2d 738).

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 either unpreserved for appellate review or without merit.

MEMORANDUM BY THE COURT.

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