People v. Rosario

• Decision Date: 10 June 2020
• Docket Number: Ind.No. 144/16,2017–05245
• Citation: 123 N.Y.S.3d 503 (Mem),184 A.D.3d 676
• Parties: The PEOPLE, etc., Respondent, v. Raymond ROSARIO, Appellant.
• Court: New York Supreme Court — Appellate Division

184 A.D.3d 676

123 N.Y.S.3d 503 (Mem)

The PEOPLE, etc., Respondent,

v.Raymond ROSARIO, Appellant.

2017–05245

Ind.No. 144/16

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

Argued—December 9, 2019

June 10, 2020

Paul Skip Laisure, New York, N.Y. (Ava C. Page of counsel), for appellant.

Michael E. McMahon, District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Alexander Fumelli of counsel), for respondent.

LEONARD B. AUSTIN, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (William Garnett, J.), rendered April 19, 2017, convicting him of assault in the third degree (two counts), criminal obstruction of breathing or blood circulation, and petit larceny, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that certain comments made during jury selection by a prospective juror, who was a retired police officer, suggested that the defendant had a prior criminal record. The defendant argues that he was denied his right to a fair trial by an impartial jury based upon the Supreme Court's failure to issue a curative instruction in response to those comments, or inquire of the other prospective jurors as to whether those comments prejudiced them against the defendant. However, the defendant's contention is unpreserved for appellate review, as he failed to raise this issue before the Supreme Court (see CPL 470.05[2] ; People v. Brown, 21 A.D.3d 1035, 1035–1036, 802 N.Y.S.2d 694 ). In any event, the defendant's contention is without merit. The prospective juror, who was later excused, twice stated that he did not recognize the defendant, and his comments did not otherwise suggest that the defendant had a prior criminal record (cf. People v. Green, 31 A.D.3d 1048, 1049, 818 N.Y.S.2d 862 ; People v. Butler, 258 A.D.2d 368, 369, 686 N.Y.S.2d 372 ).

The defendant's contention that the two counts of assault in the third degree were multiplicitous and that his conviction of both counts violated CPL 40.20 is unpreserved for appellate review (see CPL 470.05[2] ; People v. Dodson, 48 N.Y.2d 36, 39, 421 N.Y.S.2d 47, 396 N.E.2d 194 ). In any event, the defendant's contentions and his related constitutional double jeopardy claim are without merit. Under the circumstances of this case, the defendant's conduct of striking the complainant multiple times with a closed fist and subsequently dragging her by the...