        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

298
KA 07-01032
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROBERTO A. ASTACIO, DEFENDANT-APPELLANT.


KIMBERLY J. CZAPRANSKI, CONFLICT DEFENDER, ROCHESTER (JOSEPH D.
WALDORF OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ERIN TUBBS OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Roy W. King,
A.J.), rendered November 2, 2006. The judgment convicted defendant,
upon a jury verdict, of burglary in the first degree, assault in the
first degree and robbery in the second degree (two counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, burglary in the first degree
(Penal Law § 140.30 [2]) and assault in the first degree (§ 120.10
[4]). To the extent defendant challenges the legal sufficiency of the
evidence supporting the conviction of assault in the first degree,
that contention is not preserved for our review (see People v Hines,
97 NY2d 56, 61, rearg denied 97 NY2d 678) and, in any event, lacks
merit (see generally People v Bleakley, 69 NY2d 490, 495).
Additionally, viewing the evidence in light of the elements of the
crimes of burglary in the first degree and assault in the first degree
as charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
reject defendant’s contention that the verdict with respect to those
crimes is against the weight of the evidence (see generally Bleakley,
69 NY2d at 495). The evidence establishes that defendant’s actions
were a “sufficiently direct cause” of the injuries to the relevant
victim (People v Petrosino, 299 AD2d 851, 852, lv denied 99 NY2d 618
[internal quotation marks omitted]; see People v Darrow, 260 AD2d 928,
929; see generally People v Stewart, 40 NY2d 692, 697). Moreover,
“[r]esolution of issues of credibility, as well as the weight to be
accorded to the evidence presented, are primarily questions to be
determined by the jury” (People v Witherspoon, 66 AD3d 1456, 1457, lv
denied 13 NY3d 942 [internal quotation marks omitted]). Defendant
contends that the assault in the first degree count in the indictment
of which he was convicted is duplicitous. That contention is not
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                                                         KA 07-01032

preserved for our review (see People v Sponburgh, 61 AD3d 1415, 1416,
lv denied 12 NY3d 929), 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]).

     Defendant’s contention that the People committed a Brady
violation is also not preserved for our review (see People v Jacobs,
71 AD3d 693, 693, lv denied 14 NY3d 888; People v Caswell, 56 AD3d
1300, 1303, lv denied 11 NY3d 923, reconsideration denied 12 NY3d 781)
and, in any event, lacks merit (see People v Griffin, 48 AD3d 894,
895, lv denied 10 NY3d 959; see also People v Dizak, 93 AD3d 1182,
1184, lv denied 19 NY3d 972, reconsideration denied 20 NY3d 932).
Moreover, “a defendant’s constitutional right to a fair trial is not
violated when, as here, he is given a meaningful opportunity to use
the allegedly exculpatory material to cross-examine the People’s
witnesses or as evidence during his case” (People v Morrison, 90 AD3d
1554, 1555, lv denied 19 NY3d 1028, reconsideration denied 20 NY3d 934
[internal quotation marks omitted]). Contrary to defendant’s further
contention, there was no error under People v Trowbridge (305 NY 471),
which restricts third-party testimony regarding an eyewitness’s
pretrial identification of a defendant, because here the eyewitness
herself testified as to her identification of defendant (see People v
Thomas, 17 NY3d 923, 926; People v Bolden, 58 NY2d 741, 742-743).

     Defendant failed to preserve for our review his contention that
County Court erred in discharging a sworn juror and, contrary to
defendant’s contention, preservation is required inasmuch as the
court’s alleged error is not a mode of proceedings error (see People v
Powell, 79 AD3d 1791, 1792, lv denied 17 NY3d 799; see also People v
Kelly, 5 NY3d 116, 119-120). In any event, defendant’s contention
regarding the alleged error in discharging that juror lacks merit
inasmuch as the court properly discharged the juror from service
pursuant to CPL 270.35 (see People v Washington, 50 AD3d 1539, 1540,
lv denied 11 NY3d 742; see also People v Jeanty, 94 NY2d 507, 516-517,
rearg denied 95 NY2d 849; People v Forino, 65 AD3d 1259, 1260, lv
denied 13 NY3d 907).

     Defendant also did not preserve for our review his contention
that the court erred in failing to discharge a sworn juror (see People
v Dennis, 91 AD3d 1277, 1279, lv denied 19 NY3d 995), and we reject
his contention that the court’s alleged error is a mode of proceedings
error for which preservation is not required (see Powell, 79 AD3d at
1792, citing Kelly, 5 NY3d at 119-120). In any event, defendant’s
contention lacks merit (see Dennis, 91 AD3d at 1279; see generally
People v Buford, 69 NY2d 290, 298).

     Assuming, arguendo, that defendant preserved for our review his
contention that the testimony of a police investigator violated
defendant’s constitutional right of confrontation (see generally
Crawford v Washington, 541 US 36, 53-54), we conclude that the
statements at issue were “testimonial” and thus violated his right of
confrontation (see Morrison, 90 AD3d at 1556). Nevertheless, we
conclude that the error is harmless. “Trial errors resulting in
                                 -3-                           298
                                                         KA 07-01032

violation of a criminal defendant’s Sixth Amendment right to
confrontation ‘are considered harmless when, in light of the totality
of the evidence, there is no reasonable possibility that the error
affected the jury’s verdict’ ” (id. at 1557, quoting People v Porco,
17 NY3d 877, 878, cert denied ___ US ___, 132 S Ct 2453). Here, the
evidence of guilt was overwhelming inasmuch as it included testimony
from several eyewitnesses, as well as a statement defendant gave
linking himself to the crimes, and there was no reasonable possibility
that the error affected the jury’s verdict (see generally People v
Crimmins, 36 NY2d 230, 237).

     To the extent that defendant’s additional contention that he was
denied a fair trial by prosecutorial misconduct is preserved for our
review (see CPL 470.05 [2]), it is without merit. The alleged
misconduct was “not so egregious as to deprive defendant of a fair
trial” (People v Wittman, 103 AD3d 1206, 1207). Finally, viewing the
evidence, the law, and the circumstances of this case in totality and
at the time of representation, we conclude that defense counsel
provided meaningful representation (see generally People v Baldi, 54
NY2d 137, 147).




Entered:   April 26, 2013                       Frances E. Cafarell
                                                Clerk of the Court
