PEOPLE v. FORINO

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

Decided: September 22, 2009

PETER B. SKELOS, J.P., DANIEL D. ANGIOLILLO, RUTH C. BALKIN and ARIEL E. BELEN, JJ. Kent V. Moston, Hempstead, N.Y. (Jeremy L. Goldberg and David A. Bernstein of counsel), for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Douglas Noll, Margaret E. Mainusch, and Jason P. Weinstein of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (La Pera, J.), rendered July 13, 2007, convicting him of attempted burglary 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), 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 NY3d 342), 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 NY3d 383, cert denied 542 U.S. 946; People v. Bleakley, 69 N.Y.2d 490, 495). 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 NY3d 633).

Contrary to the defendant's contentions, the trial court did not improvidently refuse to excuse certain prospective jurors for cause, as the challenged jurors all indicated that they would be able to follow the law as set forth by the court (see People v. Porter, 7 AD3d 817, 817; People v. Bunch, 278 A.D.2d 501, 502; People v. Rudolph, 266 A.D.2d 568, 569) and none of their responses rose to the level of actual bias (see People v. Smith, 48 AD3d 489; People v. Rivera, 33 AD3d 303, 313, affd 9 NY3d 904).

“Contrary to the defendant's contention, the Supreme Court properly declined to provide the jury with a circumstantial evidence charge since the evidence was both direct and circumstantial” (People v. Holland, 45 AD3d 863, 863; see People v. Daddona, 81 N.Y.2d 990, 992; People v. Johnson, 293 A.D.2d 489; People v. Martinez, 185 A.D.2d 365). In addition, the defendant's contention that the court's final charge was inadequate because it did not include a Molineux charge (see People v. Molineux, 168 N.Y. 264, 293) does not warrant reversal since the evidence of the defendant's guilt was overwhelming and, in light of the court's initial instruction regarding the challenged testimony, there was no significant probability that the error contributed to the defendant's conviction (see People v. Crimmins, 36 N.Y.2d 230; People v. Hawker, 215 A.D.2d 499, 500).

Since no reasonable view of the evidence supports a finding of the affirmative defense of renunciation, the trial court properly declined to charge the jury on that defense (see People v. Watts, 57 N.Y.2d 299, 301).

The defendant's contention regarding the selection of alternate juror number one is unpreserved for appellate review, since the defendant did not seek to exercise either a for cause or a peremptory challenge against her (see People v. Whitfield, 240 A.D.2d 522, 522; People v. Scott, 197 A.D.2d 644, 645). In any event, the trial court providently exercised its discretion in discharging a sick juror on the second day of trial (see CPL 270 .35 [2][a]; People v. Jeanty, 94 N.Y.2d 507, 516; People v. Ballard, 51 AD3d 1034; People v. Shelton, 31 AD3d 791, 791-792) and in replacing that juror with alternate juror number one.

“A trial court has broad discretion to restrict the scope of voir dire by counsel and indeed must preclude repetitive or irrelevant questioning” (People v. Jean, 75 N.Y.2d 744, 745; see CPL 270.15[1][c]; People v. Pepper, 59 N.Y.2d 353, 358). Here, the trial court providently exercised its discretion in setting time limits on each attorney's voir dire of prospective jurors, and defense counsel was provided a fair opportunity to ask relevant and material questions (see CPL 270.15[1][c]; People v. Jean, 75 N.Y.2d 744, 745; People v. Thompson, 45 AD3d 876, 877; People v. Wheeler, 268 A.D.2d 448).

The People failed to give the defendant statutory notice of a police-arranged showup identification conducted shortly after his arrest (see CPL 710.30). However, since there was “no significant probability that the People's failure to provide notice pursuant to CPL 710.30(1) contributed to the defendant's convictions,” and in light of the overwhelming evidence of the defendant's guilt, any error in the admission of that witness's in-court identification was harmless (People v. Thomas, 58 AD3d 645; see People v. Crimmins, 36 N.Y.2d 230, 242; People v. Nunez, 55 AD3d 756, 757; People v. Manson, 176 A.D.2d 294, 295; cf. People v. Dixon, 85 N.Y.2d 218, 224).

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