People v. Kurth

• Decision Date: 08 March 2011
• Citation: 918 N.Y.S.2d 536,82 A.D.3d 905
• Parties: The PEOPLE, etc., respondent, v. Lloyd KURTH, appellant.
• Court: New York Supreme Court — Appellate Division

918 N.Y.S.2d 536 82 A.D.3d 905 The PEOPLE, etc., respondent, v. Lloyd KURTH, appellant. Supreme Court, Appellate Division, Second Department, New York. March 8, 2011.

Gustavo L. Vila, P.C., Yorktown Heights, N.Y., for appellant.

Francis D. Phillips II, District Attorney, Goshen, N.Y. (Elizabeth L. Guinup and Andrew R. Kass of counsel), for respondent.

DANIEL D. ANGIOLILLO, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.

Appeal by the defendant from a judgment of the County Court, Orange County (Neary, J.), rendered December 22, 2008, convicting him of grand larceny in the fourth degree, criminal possession of stolen property in the fourth degree, and official misconduct, after a nonjury trial, 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, 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 factfinder'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).

The defendant failed to preserve for appellate review his contention that the grand jury proceeding was defective because it failed "to conform to the requirements of [CPL article 190] to such degree that the integrity thereof is impaired and prejudice to the defendant may result" (CPL 210.35[5]; see People v. Brown, 81 N.Y.2d 798, 595 N.Y.S.2d 370, 611 N.E.2d 271; People v. Bryan, 50 A.D.3d 1049, 1050, 856 N.Y.S.2d 227; People v. Workman, 277 A.D.2d 1029, 1031, 716 N.Y.S.2d 198). In any event, the alleged improper conduct on the part of the prosecutor did not impair the integrity of the grand jury proceeding or prejudice the defendant ( see CPL 210.35[5]; People v. Brownlee, 121 A.D.2d 553, 554, 503 N.Y.S.2d 848; cf. People v. Huston, 88 N.Y.2d 400, 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362).

Furthermore, the defendant's contention that certain records of the Orange County Sheriff's Department involving a firearm receipt and evidence logbook were improperly admitted into evidence under the business records exception to the hearsay rule is unpreserved for appellate review ( see CPL 470.05[2]; People v. Verrilli, 69 A.D.3d 963, 964, 895 N.Y.S.2d 439; People v. Sprosta, 49 A.D.3d 784, 785, 853 N.Y.S.2d 625) and, in any event, is without merit. Insofar as the documents constituted hearsay evidence, the People properly established a foundation for the admission of the documents as business records ( see CPLR 4518[a]; People v. Guidice, 83 N.Y.2d 630, 635, 612 N.Y.S.2d 350, 634 N.E.2d 951; Matter of Leon RR, 48 N.Y.2d 117, 122, 421 N.Y.S.2d 863, 397 N.E.2d 374; Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517; People v. Bell, 286 A.D.2d 443, 729 N.Y.S.2d 899; cf. People v. Kennedy, 68 N.Y.2d 569, 579-580, 510 N.Y.S.2d 853, 503 N.E.2d 501). Furthermore, contrary to the defendant's contention, admission of the documents did not violate his Sixth Amendment right to confront his accusers ( see People v. Dail, 69 A.D.3d 873, 874, 894 N.Y.S.2d 78; see also Melendez-Diaz v. Massachusetts, 557 U.S. ----, 129 S.Ct. 2527, 2539-2540, 174 L.Ed.2d 314; Crawford v. Washington, 541 U.S. 36, 56, 124 S.Ct. 1354, 158 L.Ed.2d 177). Moreover,the defendant's contention that he was deprived of the effective assistance of counsel by...