| People v Auguste |
| 2017 NY Slip Op 04451 |
| Decided on June 7, 2017 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on June 7, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
JOHN M. LEVENTHAL, J.P.
SYLVIA O. HINDS-RADIX
HECTOR D. LASALLE
VALERIE BRATHWAITE NELSON, JJ.
2014-11533
(Ind. No. 2555/11)
v
Nadege Auguste, appellant.
Mark Diamond, New York, NY, for appellant.
Eric T. Schneiderman, Attorney General, New York, NY (Nikki Kowalski and Hannah Stith Long of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldberg, J.), rendered November 17, 2014, convicting her of scheme to defraud in the first degree and grand larceny in the third degree (eight counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the prosecution established by a preponderance of the evidence that venue was proper in Kings County (see CPL 20.40[1]; People v Greenberg, 89 NY2d 553, 555-556; People v Ribowsky, 77 NY2d 284, 291-292).
The defendant's contention that the evidence supporting her convictions was legally insufficient is partially unpreserved for appellate review (see CPL 470.05[2]; People v Hawkins, 11 NY3d 484, 492). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621), 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 NY3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe their demeanor (see People v Mateo, 2 NY3d 383, 410; People v Bleakley, 69 NY2d 490, 495). Upon reviewing the record, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633).
The defendant's contention that the Supreme Court improperly discharged a sworn juror and replaced her with an alternate is also without merit. The court conducted a reasonably thorough inquiry into the juror's unavailability and providently exercised its discretion in replacing the juror after determining that the juror would not appear within the two-hour period set forth in CPL 270.35(2) (see People v Jeanty, 94 NY2d 507). The defendant's claim regarding the constitutionality of the discharge of the juror is unpreserved for appellate review (see People v Angelo, 88 NY2d 217, 222; People v Ballard, 51 AD3d 1034, 1035-1036) and, in any event, without merit (see People v Jeanty, 94 NY2d at 517; People v Ballard, 51 AD3d at 1036).
Contrary to the defendant's contentions, the Supreme Court properly denied, without a hearing, that branch of her motion which was to set aside the verdict pursuant to CPL 330.30(2), based upon alleged juror misconduct (see CPL 330.40[2][e]; People v Gerrara, 88 AD3d 811, 813-814; People v Bab Lin You, 264 AD2d 780, 780; People v Cervantes, 242 AD2d 730, 731).
LEVENTHAL, J.P., HINDS-RADIX, LASALLE and BRATHWAITE NELSON, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court