PEOPLE v. McCRAY

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

The PEOPLE, etc., respondent, v. Joseph McCRAY, appellant.

Decided: April 28, 2009

WILLIAM F. MASTRO, J.P., MARK C. DILLON, JOHN M. LEVENTHAL, and CHERYL E. CHAMBERS, JJ. Joseph McCray, Moravia, N.Y., appellant pro se. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Camille O'Hara Gillespie, and Judith Aarons of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ingram, J.), rendered October 26, 2006, convicting him of grand larceny in the second degree, falsifying business records in the first degree, offering a false instrument for filing in the first degree, criminal mischief in the third degree (two counts), criminal trespass in the second degree (two counts), and criminal possession of a forged instrument in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that 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 beyond a reasonable doubt (see Penal Law §§ 145.05[2], 155.40[1];  People v. James, 111 A.D.2d 254, 255-256, 489 N.Y.S.2d 527, affd. 67 N.Y.2d 662, 499 N.Y.S.2d 670, 490 N.E.2d 537;  People v. Alexander, 41 A.D.3d 1200, 1201, 839 N.Y.S.2d 361;  People v. Adams, 8 A.D.3d 893, 893-894, 779 N.Y.S.2d 275;  People v. Sheehy, 274 A.D.2d 844, 845, 711 N.Y.S.2d 856;  People v. Jackson, 194 A.D.2d 691, 692, 599 N.Y.S.2d 114;  People v. White, 167 A.D.2d 256, 561 N.Y.S.2d 756;  People v. Arguirre, 159 A.D.2d 510, 552 N.Y.S.2d 378;  People v. Callaway, 133 A.D.2d 838, 520 N.Y.S.2d 208).   Accordingly, the defendant's contention that the evidence presented by the People to the grand jury was legally insufficient to support the charges he was convicted of is not reviewable, as the defendant was convicted at trial based on legally sufficient evidence (see CPL 210.30[6];  People v. Haberer, 24 A.D.3d 1283, 1284, 805 N.Y.S.2d 904;  People v. Silva, 306 A.D.2d 424, 425, 760 N.Y.S.2d 876).

 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, 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, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;  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).

The defendant's claim that the grand jury proceeding was defective is unpreserved for appellate review (see CPL 210.20[2];  CPL 255.20;  People v. Pressley, 94 N.Y.2d 935, 937, 708 N.Y.S.2d 32, 729 N.E.2d 689;  People v. Iannone, 45 N.Y.2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656;  People v. Lewis, 283 A.D.2d 442, 724 N.Y.S.2d 623;  People v. Beyor, 272 A.D.2d 929, 930, 708 N.Y.S.2d 535;  People v. Sheltray, 244 A.D.2d 854, 665 N.Y.S.2d 224).

 The defendant's contention that defense counsel was ineffective because he did not move to dismiss the indictment on the ground that the grand jury proceeding was defective constitutes an off-the-record claim which is unreviewable on direct appeal (see People v. Jackson, 304 A.D.2d 327, 328, 756 N.Y.S.2d 580).   The defendant's remaining claims of ineffective assistance of trial counsel are without merit.   The defendant was afforded meaningful representation (see People v. Ennis, 11 N.Y.3d 403, 872 N.Y.S.2d 364, 900 N.E.2d 915;  People v. Turner, 5 N.Y.3d 476, 480, 806 N.Y.S.2d 154, 840 N.E.2d 123;  People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584).

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