PEOPLE v. GRAFF

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

The PEOPLE, etc., respondent, v. Arthur L. GRAFF, appellant.

Decided: April 26, 1999

LAWRENCE J. BRACKEN, J.P., THOMAS R. SULLIVAN, WILLIAM D. FRIEDMANN and ANITA R. FLORIO, JJ. Andrea Christiansen, Islandia, N.Y., for appellant. Denis Dillon, District Attorney, Mineola, N.Y. (Peter A. Weinstein and Denise Pavlides of counsel;  Nell Mallen on the brief), for respondent.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Ohlig, J.), rendered January 20, 1998, convicting him of attempted grand larceny in the second degree (two counts) and insurance fraud in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed, and the matter is remitted to the County Court, Suffolk County, for further proceedings pursuant to CPL 460.50(5).

 The defendant's contention that the verdict of guilt was not supported by legally sufficient evidence is only partially preserved for appellate review (see, CPL 470.05[2] ).  In any event, viewing the evidence in the light most favorable to the prosecution (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] ).

 Although we agree that the prosecutor acted inappropriately several times during the trial, in light of the court's rulings, admonitions, and curative instructions to the jury, and in view of the totality of the circumstances, including the overwhelming evidence of the defendant's guilt, we conclude that the defendant was not prejudiced (see, e.g., People v. Hopkins, 58 N.Y.2d 1079, 1083, 462 N.Y.S.2d 639, 449 N.E.2d 419;  People v. Galloway, 54 N.Y.2d 396, 401, 446 N.Y.S.2d 9, 430 N.E.2d 885;  People v. Overlee, 236 A.D.2d 133, 136, 666 N.Y.S.2d 572;  People v. Nathan, 224 A.D.2d 640, 639 N.Y.S.2d 412;  cf., People v. Walters, 251 A.D.2d 433, 674 N.Y.S.2d 114;  People v. Cotton, 242 A.D.2d 638, 639, 662 N.Y.S.2d 135).

 Although the court asked questions of certain witnesses, its intervention in this protracted trial, which lasted five weeks, was designed to clarify the issues and to move the proceedings forward at a reasonable pace (see, e.g., People v. Moulton, 43 N.Y.2d 944, 945, 403 N.Y.S.2d 892, 374 N.E.2d 1243;  cf., People v. De Jesus, 42 N.Y.2d 519, 523-524, 399 N.Y.S.2d 196, 369 N.E.2d 752).   Moreover, the court's intervention benefitted the defendant in all but one instance, and on that occasion the court struck the damaging testimony from the record and issued an appropriate curative instruction to the jury.

The defendant's sentence 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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