People v. Hodge, 2015-10503, Ind. No. 14-00992.

• Decision Date: 25 October 2017
• Docket Number: 2015-10503, Ind. No. 14-00992.
• Parties: The PEOPLE, etc., respondent, v. Crown HODGE, appellant.
• Court: New York Supreme Court — Appellate Division

154 A.D.3d 963
63 N.Y.S.3d 448

The PEOPLE, etc., respondent,
v.
Crown HODGE, appellant.

2015-10503, Ind. No. 14-00992.

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

Oct. 25, 2017.

63 N.Y.S.3d 449

Jason M. Bernheimer, Katonah, NY, for appellant.

Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Virginia A. Marciano and William C. Milaccio of counsel), for respondent.

JOHN M. LEVENTHAL, J.P., BETSY BARROS, VALERIE BRATHWAITE NELSON, and LINDA CHRISTOPHER, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Neary, J.), rendered September 30, 2015, convicting him of burglary in the second degree, criminal possession of stolen property in the fifth degree, and petit

63 N.Y.S.3d 450

larceny, upon a jury verdict, and sentencing him to concurrent determinate terms of imprisonment of seven years for burglary in the second degree, one year for criminal possession of stolen property in the fifth degree, and one year for petit larceny.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed for burglary in the second degree to a determinate term of imprisonment of four years; as so modified, the judgment is affirmed.

Viewing the evidence adduced at trial 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 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 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, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict 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 decision to declare a mistrial rests in the broad discretion of the trial judge, who is best situated to take all the circumstances into account and determine whether a mistrial is in fact required (see Matter of Plummer v. Rothwax, 63 N.Y.2d 243, 250, 481 N.Y.S.2d 657, 471 N.E.2d 429 ; People v. Clearwater, 269 A.D.2d 462, 462, 702 N.Y.S.2d 921 ). This decision is entitled to great deference by reviewing courts (Matter of Plummer v. Rothwax, 63 N.Y.2d at 250, 481 N.Y.S.2d 657, 471 N.E.2d 429 ). The reason for granting the mistrial, however, must be "actual and substantial" (Matter of Enright v. Siedlecki, 59 N.Y.2d 195, 200, 464 N.Y.S.2d 418, 451 N.E.2d 176 ; see Matter of Roey v. Lopresto, 122 A.D.3d 929, 931, 998 N.Y.S.2d 91 ; Matter of Taylor v. Dowling, 108 A.D.3d 566, 568, 968 N.Y.S.2d 556 ). "Even if...