People v. Hooper

• Decision Date: 09 November 2001
• Docket Number: 4,00-01978
• Parties: PEOPLE OF THE STATE OF NEW YORK,PAMELA HOOPER,KA 00-01978. (Onondaga Co.) SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FOURTH JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT,

V

PAMELA HOOPER, DEFENDANT-APPELLANT

KA 00-01978. (Onondaga Co.)

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: FOURTH JUDICIAL DEPARTMENT

November 9, 2001

PRESENT: PIGOTT, JR., P. J., WISNER, HURLBUTT, KEHOE AND LAWTON, JJ.

Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting her following a jury trial of insurance fraud in the third degree (Penal Law § 176.20). Defendant contends that the verdict is repugnant because the jury acquitted her of attempted grand larceny in the third degree (Penal Law §§ 110.00, 155.35). That contention is not preserved for our review because defendant failed to object to the verdict before the jury was discharged (see, People v Alfaro, 66 N.Y.2d 985, 987; People v Crisler, 278 A.D.2d 887, 888, lv denied 96 N.Y.2d 861; People v Alston, 275 A.D.2d 997, 997-998, lv denied 96 N.Y.2d 756). Contrary to defendant's further contention, the verdict is not against the weight of the evidence (see, People v Bleakley, 69 N.Y.2d 490, 495).

Defendant contends that she was denied a fair trial because of alleged juror misconduct. At defendant's request, the jurors were questioned individually and curative instructions were given. "It is presumed that the jury followed the trial court's curative instructions * * * and as defendant raised no further objection, [s]he has waived appellate review" (People v Brown, 174 A.D.2d 370, 371, lv denied 78 N.Y.2d 1009; see, People v Pivnick, 277 A.D.2d 1000, 1001, lv denied 96 N.Y.2d 786).

We further conclude that County Court did not abuse its discretion in failing to appoint a special prosecutor. In seeking that relief, defendant failed to show "actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence" (Matter of Schumer v Holtzman, 60 N.Y.2d 46, 55). "Absent such showing, there was no ground for disqualifying the District Attorney from prosecuting the case" (People v Freeman, 172 A.D.2d 1045, 1046, lv denied 78 N.Y.2d 1011; see, People v Wynn, 248 A.D.2d 494, lv denied 91 N.Y.2d 1014).

The contention of defendant that she was denied a fair trial by prosecutorial misconduct on summation is not preserved for our review (see, CPL 470.05 [2]), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). We reject defendant's further contention that the preservation requirements of the Criminal Procedure Law are unconstitutional (see, People v Mike, 283 A.D.2d 989, lv denied 96 N.Y.2d 904; People v Peters, 249 A.D.2d 987, 988, lv denied 92 N.Y.2d 903). We...