PEOPLE v. UMANA

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The PEOPLE, etc., respondent, v. Jacinto UMANA, appellant.

Decided: September 28, 2010

JOSEPH COVELLO, J.P., FRED T. SANTUCCI, RUTH C. BALKIN, and LEONARD B. AUSTIN, JJ. Robert C. Mitchell, Riverhead, N.Y. (John M. Dowden of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marion M. Tang of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Suffolk County (J. Doyle, J.), rendered June 3, 2008, convicting him of assault 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, 348-349), 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 was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).

Contrary to the defendant's contention, there was a sufficient factual predicate to support a jury instruction regarding flight as evidence of consciousness of guilt (see People v. Robinson, 10 AD3d 696; People v. Applewhite, 298 A.D.2d 136; People v. Di Bella, 277 A.D.2d 699; People v. Wady, 220 A.D.2d 631; People v. Jamison, 173 A.D.2d 341), and the trial court's charge did not have the effect of improperly supplanting the fact-finding function of the jury on the issue of identification (see People v. Applewhite, 298 A.D.2d 136; People v. Green, 161 A.D.2d 248).

The defendant's contention that the People were improperly permitted to elicit testimony as to a statement made by the defendant without serving notice of their intention to do so prior to trial pursuant to CPL 710.30 is without merit. Notice was not required because the defendant's statement in Spanish was made in response to a question posed by one of his coworkers at the time of arrest, and was merely overheard by a law enforcement official who, unbeknownst to the defendant, also spoke Spanish (see People v. Murphy, 163 A.D.2d 425; People v. Cortese, 136 A.D.2d 724; see also People v. Shurka, 191 A.D.2d 724, 726; People v. Stewart, 160 A.D.2d 966; People v. Robertson, 149 A.D.2d 442).

“The nature and extent of cross-examination is subject to the sound discretion of the Trial Judge” (People v. Schwartzman, 24 N.Y.2d 241, 244, cert denied 396 U.S. 846; see People v. Salgado, 70 AD3d 864). Here, contrary to the defendant's contention, defense counsel's cross-examination of the People's witness Roberto Sorto was not improperly curtailed or restricted (see People v. Miller, 91 N.Y.2d 372, 380; People v. Rodriguez, 38 N.Y.2d 95, 101).

To preserve a claim that the trial court improperly denied a “for cause” challenge to a prospective juror, a defendant must exhaust all of his peremptory challenges, even those mistakenly awarded by the court, before the selection of the jury is complete (CPL 270.20[2]; see People v. Lynch, 95 N.Y.2d 243, 248). Here, the defendant failed to exhaust all of his peremptory challenges, and, accordingly, the argument is unpreserved for appellate review (see CPL 270.25[2][c] ). In any event, the trial court properly declined to excuse a prospective juror for cause, as the juror indicated that she would be able to follow the law as provided by the court (see People v. Herring, 14 AD3d 623; People v. Narvaez, 298 A.D.2d 603; People v. Chronis, 282 A.D.2d 687, 687-688; People v. Rudolph, 266 A.D.2d 568, 568-569). Furthermore, the defendant's contention that the trial court's sua sponte pre-voir dire excusal of those prospective jurors who were uncertain of their ability to serve fairly was prejudicial is unpreserved for appellate review (see People v. Wynder, 41 AD3d 209; People v. McGhee, 4 AD3d 485, 486; People v. Boozer, 298 A.D.2d 261). In any event, this procedure was a proper exercise of the trial court's discretion (see People v. Anderson, 48 AD3d 825, 826; People v. Wynder, 41 AD3d 209; People v. McGhee, 4 AD3d at 486; People v. Boozer, 298 A.D.2d 261).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 86).

The defendant's remaining contention is without merit.

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