PEOPLE v. FLOWERS

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

The PEOPLE, etc., respondent, v. Randolph FLOWERS, appellant.

Decided: May 23, 2012

WILLIAM F. MASTRO, A.P.J., ANITA R. FLORIO, CHERYL E. CHAMBERS, and SHERI S. ROMAN, 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 (Weber, J.), rendered October 5, 2009, convicting him of burglary in the first degree and assault in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's contention that the evidence was legally insufficient to support his convictions is unpreserved for appellate review, as defense counsel made only a general motion for a trial order of dismissal based upon the People's alleged failure to make out a prima face case (see CPL 470.05;  People v. Hawkins, 11 N.Y.3d 484, 491–492, 872 N.Y.S.2d 395, 900 N.E.2d 946).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Additionally, 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, 849 N.Y.S.2d 480, 880 N.E.2d 1), 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 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, 826 N.Y.S.2d 163, 859 N.E.2d 902).

 While questioning the complainant before the grand jury, the prosecutor once referred to August 17, 2007, instead of January 17, 2008, as the date the subject crimes occurred.   To the extent the defendant contends that, as a result, the evidence before the grand jury was legally insufficient to indict the defendant for crimes allegedly committed on January 17, 2008, the contention is not reviewable on this appeal, since the defendant's guilt was proven beyond a reasonable doubt at trial (see CPL 210.30[6];  People v. Oliver, 87 A.D.3d 1035, 1037, 929 N.Y.S.2d 182;  People v. Bajana, 82 A.D.3d 1111, 1112, 919 N.Y.S.2d 194;  People v. Parker, 74 A.D.3d 1365, 1366, 903 N.Y.S.2d 264;  People v. Folkes, 43 A.D.3d 956, 957, 841 N.Y.S.2d 365).   To the extent that the defendant contends, on the same ground, that the grand jury proceeding was defective, the defendant failed to establish any possibility that the single reference to the incorrect date prejudiced the ultimate decision reached by the grand jury, since the remaining evidence contained six references to the correct date of January 17, 2008, and, as such, was sufficient to sustain the indictment (see CPL 210.20[1][c];  210.35[5];  People v. Huston, 88 N.Y.2d 400, 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362;  People v. Avant, 33 N.Y.2d 265, 271, 352 N.Y.S.2d 161, 307 N.E.2d 230;  People v. Walton, 70 A.D.3d 871, 873–874, 895 N.Y.S.2d 175).

 The defendant's claim of prejudicial bolstering is unpreserved for appellate review, as defense counsel either failed to object to the challenged testimony, or objected on general hearsay grounds (see People v. McEathron, 86 A.D.3d 915, 916, 926 N.Y.S.2d 249;  People v. Hynes, 193 A.D.2d 516, 598 N.Y.S.2d 182;  People v. Vargas, 155 A.D.2d 565, 547 N.Y.S.2d 420).   In any event, while the investigating detective's testimony regarding the complainant's identification of the defendant from a photo array was improper, the error was harmless, as the evidence of the defendant's guilt, without reference to the improper testimony, was overwhelming, and there was no significant probability that, but for the error, the jury would have acquitted the defendant (see People v. Johnson, 57 N.Y.2d 969, 971, 457 N.Y.S.2d 230, 443 N.E.2d 478;  People v. Brody, 82 A.D.3d 784, 785, 918 N.Y.S.2d 158;  People v. Herndon, 47 A.D.3d 837, 849 N.Y.S.2d 634;  People v. White, 210 A.D.2d 271, 619 N.Y.S.2d 969).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

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