The People, etc., respondent, v. Ykim Anderson, appellant.

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

The People, etc., respondent, v. Ykim Anderson, appellant.

2008-04142 (Ind.No. 96/06)

Decided: September 14, 2010

WILLIAM F. MASTRO, J.P. ANITA R. FLORIO ARIEL E. BELEN CHERYL E. CHAMBERS, JJ. Carol Kahn, New York, N.Y., for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.

Argued-June 15, 2010

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Dutchess County (Cohen, J.), rendered March 20, 2008, convicting him of enterprise corruption, criminal sale of a controlled substance in the third degree (two counts), criminal possession of a controlled substance in the third degree (two counts), burglary in the second degree, and criminal sale of a firearm in the third degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that the evidence was legally insufficient to support his convictions of enterprise corruption, criminal sale of a firearm in the third degree and, under counts 49 and 50 of the superseding indictment, criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree.   However, only the challenges to the convictions of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree under counts 49 and 50 of the superseding indictment are preserved for appellate review (see People v. Hawkins, 11 NY3d 484, 492).   Upon the exercise of our interest of justice jurisdiction (see CPL 470.15[6][a] ), we review the contentions which are unpreserved for appellate review, as well as those contentions which are preserved.   Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt with respect to the challenged convictions 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, 410, 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 with respect to the challenged convictions was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).

Contrary to the defendant's contention, the trial court did not improvidently exercise its discretion when it permitted a witness to testify as to threats certain individuals made to him prior to trial, as there was circumstantial evidence linking the defendant to those threats (see People v. Arguinzoni, 48 AD3d 1239, 1240;  People v. Myrick, 31 AD3d 668, 669;  People v. Hendricks, 4 AD3d 798, 799;  People v. Spruill, 299 A.D.2d 374, 375).  “As the probative value of this testimony exceeded its prejudicial potential, failure to conduct a Ventimiglia hearing [see People v. Ventimiglia, 52 N.Y.2d 350] does not necessitate reversal” (People v. Sherman, 156 A.D.2d 889, 891;  see People v. Andrews, 277 A.D.2d 1009, 1009-1010;  People v. Pugh, 236 A.D.2d 810, 812).

The defendant's contention that the admission of a “rap video” containing statements made by nontestifying codefendant Avery Green violated his right of confrontation under Crawford v. Washington (541 U.S. 36) and Bruton v. United States (391 U.S. 123) is without merit as the statements were not testimonial in nature and did not implicate the defendant (see People v. McBean, 32 AD3d 549, 552;  People v. Dickson, 21 AD3d 646, 647;  People v. Johnson, 224 A.D.2d 635, 636;  People v. Paulino, 187 A.D.2d 736;  see also People v. Jenkins, 55 AD3d 850, 851).

The testimony of a co-conspirator was properly received into evidence under the co-conspirator exception to the hearsay rule (see People v. Caban, 5 NY3d 143, 148;  People v. Basagoitia, 55 AD3d 619;  People v. Warren, 156 A.D.2d 972).

The defendant's challenge to the verdict sheet is unpreserved for appellate review (see People v. Milland, 215 A.D.2d 505) and, in any event, is without merit.

The defendant's contention that the County Court should have granted him youthful offender status is unpreserved for appellate review (see People v. Scott, 67 AD3d 1033) and, in any event, is without merit.

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

The defendant's remaining contentions are without merit.

MASTRO, J.P., FLORIO, BELEN and CHAMBERS, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

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