The People, etc., respondent, v. Jahad Q. Fitzgerald, appellant.

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

The People, etc., respondent, v. Jahad Q. Fitzgerald, appellant.

2010–01907 (Ind.No. 09–00529)

Decided: May 31, 2011

JOSEPH COVELLO, J.P. CHERYL E. CHAMBERS PLUMMER E. LOTT ROBERT J. MILLER, JJ. Salvatore C. Adamo, New York, N.Y., for appellant. Francis D. Phillips II, District Attorney, Goshen, N.Y. (Lauren E. Grasso and Andrew R. Kass of counsel), for respondent.

Submitted—May 5, 2011


Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered January 20, 2010, convicting him of robbery in the first degree (four counts), burglary in the first degree (two counts), and grand larceny in the fourth degree (three counts), 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), 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, 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, he was not deprived of a fair trial when the County Court permitted the prosecutor to introduce evidence of his flight from the police shortly after the crimes were committed.   After a chase, the defendant was apprehended by the police and the complainant's wallet was found to be in his possession.   The evidence was relevant to his identity as the perpetrator and his consciousness of guilt, its probative value outweighed the potential prejudice to the defendant, and the court gave an appropriate limiting instruction (see People v. Leeson, 12 NY3d 823, 826–827;  People v. Yazum, 13 N.Y.2d 302, 303–305;  People v. Molineux, 168 N.Y. 264, 313–318;  People v. Powell, 107 A.D.2d 718, 719).

Contrary to the defendant's contention, the County Court providently exercised its discretion in denying his request for a missing-witness charge based on its finding that the witness was not available to the People to testify at trial (see People v. Gonzalez, 68 N.Y.2d 424, 428–429;  People v. Cintron, 72 AD3d 699).

The defendant's contention regarding the County Court's Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371) is unpreserved for appellate review (see CPL 470.05[2];  People v. Grant, 7 NY3d 421, 424) and, in any event, is without merit.

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



Matthew G. Kiernan

Clerk of the Court

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