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

The PEOPLE, etc., respondent, v. Geraldo CRUZ, appellant.

Decided: December 28, 2010

PETER B. SKELOS, J.P., RUTH C. BALKIN, RANDALL T. ENG, LEONARD B. AUSTIN, JJ. Robert C. Mitchell, Riverhead, N.Y. (Kirk R. Brandt of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Brennan of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Gazzillo, J.), rendered March 13, 2009, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, there was a sufficiently “reasonable basis, articulated on the record” for the defendant's legs to be shackled during the trial (People v. Rouse, 79 N.Y.2d 934, 935, 582 N.Y.S.2d 986, 591 N.E.2d 1172;  see People v. Robinson, 64 A.D.3d 803, 884 N.Y.S.2d 488;  People v. Rush, 44 A.D.3d 799, 800, 843 N.Y.S.2d 392).   The County Court set forth, on the record, its reasons for allowing the defendant's legs to be shackled, including the defendant's lengthy criminal record, the level of security in the courtroom, and the fact that the defendant had mailed letters to the complainant prior to the trial, which showed “animus toward the witness” (see People v. Rouse, 79 N.Y.2d at 935, 582 N.Y.S.2d 986, 591 N.E.2d 1172;  People v. Brunson, 68 A.D.3d 1551, 892 N.Y.S.2d 261).   The County Court subsequently noted that it implemented this procedure on the recommendation of security personnel.

Further, the potential prejudice was ameliorated by the fact that the shackles were concealed from the jury by black bunting placed around the defendant's table, and the County Court's direction to remove the shackles before the defendant testified (see People v. Rush, 44 A.D.3d at 800, 843 N.Y.S.2d 392;  People v. Pruitt, 28 A.D.3d 588, 813 N.Y.S.2d 210;  People v. Bailey, 205 A.D.2d 789, 790, 613 N.Y.S.2d 692;  People v. Tedesco, 143 A.D.2d 155, 159, 531 N.Y.S.2d 609).   In People v. Buchanan, 13 N.Y.3d 1, 884 N.Y.S.2d 337, 912 N.E.2d 553, the Court of Appeals held that a trial court may not use a stun belt as a routine adjunct security measure in murder cases, but “must conduct a sufficient inquiry to satisfy itself on the facts that warrant the restraint” (id. at 4, 884 N.Y.S.2d 337, 912 N.E.2d 553).   The court need not conduct a formal inquiry (id.).   Here, the County Court made “findings on the record showing that the particular defendant before him need[ed] ․ a restraint” (id. at 4, 884 N.Y.S.2d 337, 912 N.E.2d 553).

Contrary to the defendant's next contention, the County Court properly denied his request for a circumstantial evidence charge, because the People's case relied on both direct and circumstantial evidence (see People v. Johnson, 270 A.D.2d 431, 432, 705 N.Y.S.2d 385;  People v. Burgos, 170 A.D.2d 689, 567 N.Y.S.2d 103).

The defendant contends that certain remarks made by the prosecutor during summation were improper and, thus, deprived him of a fair trial.   Reversal is not warranted because most of the remarks either were responsive to defense counsel's summation or constituted fair comment on the evidence.   To the extent that any remarks were improper, they did not deprive the defendant of a fair trial (see People v. Garcia, 66 A.D.3d 699, 700, 885 N.Y.S.2d 771, lv. denied 14 N.Y.3d 800, 899 N.Y.S.2d 134, 925 N.E.2d 938;  People v. Rudd, 62 A.D.3d 729, 877 N.Y.S.2d 700).   Moreover, the County Court properly instructed the jurors that they were the finders of fact, that the arguments of counsel were not evidence, and that they were to assess the witnesses' credibility.

Contrary to the defendant's contention, the County Court gave meaningful responses to the jury's written requests during deliberations (see People v. Agosto, 73 N.Y.2d 963, 967, 540 N.Y.S.2d 988, 538 N.E.2d 340;  People v. Lourido, 70 N.Y.2d 428, 435, 522 N.Y.S.2d 98, 516 N.E.2d 1212;  CPL 310.30).

The defendant failed to preserve for appellate review his challenge to the legal sufficiency of his conviction of burglary in the second degree (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, 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 of that crime beyond a reasonable doubt.   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, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the factfinder'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, 634–635, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The sentence imposed was not excessive (see People v. Delgado, 80 N.Y.2d 780, 587 N.Y.S.2d 271, 599 N.E.2d 675;  People v. Thompson, 60 N.Y.2d 513, 519, 470 N.Y.S.2d 551, 458 N.E.2d 1228;  People v. Suitte, 90 A.D.2d 80, 85–86, 455 N.Y.S.2d 675).

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