People v. Barizone

• Decision Date: 19 January 2022
• Docket Number: 2019–13164,Ind. No. 2358/17
• Citation: 201 A.D.3d 810,160 N.Y.S.3d 93
• Parties: The PEOPLE, etc., respondent, v. Dominic BARIZONE, appellant.
• Court: New York Supreme Court — Appellate Division

201 A.D.3d 810

160 N.Y.S.3d 93

The PEOPLE, etc., respondent,

v.Dominic BARIZONE, appellant.

2019–13164

Ind. No. 2358/17

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

Argued—November 30, 2021

January 19, 2022

Eric Shapiro Renfroe, Forest Hills, NY, for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Michael J. Curtis of counsel), for respondent.

COLLEEN D. DUFFY, J.P., FRANCESCA E. CONNOLLY, SYLVIA O. HINDS–RADIX, LARA J. GENOVESI, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Richard Buchter, J.), rendered October 30, 2019, convicting him of conspiracy in the fifth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was indicted on charges of animal fighting ( Agriculture and Markets Law § 351[2][c] ) and conspiracy in the fifth degree ( Penal Law § 105.05[1] ), after he sold a pit bull puppy to an undercover officer under circumstances allegedly evincing an intent that such animal engage in animal fighting. Following a jury trial, the defendant was convicted of conspiracy in the fifth degree. He was acquitted of the animal fighting charge. The defendant thereafter moved pursuant to CPL 330.30(2) to set aside the verdict based on juror misconduct. The Supreme Court summarily denied the motion. The defendant appeals.

Contrary to the defendant's contentions, the count of the indictment charging conspiracy in the fifth degree was not jurisdictionally defective (see People v. Ray, 71 N.Y.2d 849, 850, 527 N.Y.S.2d 740, 522 N.E.2d 1037 ; People v. Schwimmer, 66 A.D.2d 91, 95, 411 N.Y.S.2d 922, affd 47 N.Y.2d 1004, 420 N.Y.S.2d 218, 394 N.E.2d 288 ), or duplicitous (see People v. Wells, 7 N.Y.3d 51, 56–57, 817 N.Y.S.2d 590, 850 N.E.2d 637 ; People v. Kaid, 43 A.D.3d 1077, 1080, 842 N.Y.S.2d 55, lv granted 10 N.Y.3d 768, 854 N.Y.S.2d 330, 883 N.E.2d 1265 ), and the time period alleged for the conspiracy was reasonable (see People v. Shack, 86 N.Y.2d 529, 540, 634 N.Y.S.2d 660, 658 N.E.2d 706 ; People v. Cassiliano, 103 A.D.2d 806, 807, 477 N.Y.S.2d 435 ).

We do not reach the defendant's contention that the warrantless helicopter flyover of the defendant's fenced-in property was improper. The affidavit in support of the search warrant of the defendant's property contained "sufficient lawfully obtained information" independent of the flyover to constitute probable cause ( People v. Vonderhyde, 114 A.D.2d 479, 480, 494 N.Y.S.2d 393 ; see also People v. Harris, 62 N.Y.2d 706, 708, 476 N.Y.S.2d 529, 465 N.E.2d 36 ). Further, the Supreme Court properly admitted into evidence a dash cam video of the defendant's phone call with an associate. The video was directly probative of the charged crimes, and its probative value outweighed any potential for prejudice to the defendant (see People v. Sales, 189 A.D.3d 1617, 1618, 135 N.Y.S.3d 280 ; People v. Arjun, 188 A.D.3d 1235, 1237, 132 N.Y.S.3d 783 ; People v. Magnan, 173 A.D.3d 1214, 1216, 104 N.Y.S.3d 158 ; People v. Franzese, 154 A.D.3d 706, 707, 61 N.Y.S.3d 661 ).

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 the evidence was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15(5), 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 ).

The defendant's contention that the verdict was repugnant is without merit (see People v. Muhammad, 17 N.Y.3d 532, 539–540, 935 N.Y.S.2d 526, 959 N.E.2d 463 ), since his acquittal on the count of animal fighting did not necessarily negate an essential element of conspiracy in the fifth degree (see People v. Williams, 146 A.D.3d 821, 822, 45 N.Y.S.3d 503 ; People v. Gary, 115 A.D.3d 760, 761, 981 N.Y.S.2d 602 ).

The defendant's contention that the Supreme Court erred in denying, without a hearing, his motion to set aside the verdict due to juror misconduct (see CPL 330.30[2] ) is without merit. The moving papers did not contain sworn allegations of the essential facts supporting the motion (see CPL 330.40 ). Instead, the motion was supported by the hearsay allegations of defense counsel, which were...