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

1241
KA 10-01835
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JACKSON SHOL, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KAREN RUSSO-MCLAUGHLIN
OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered September 1, 2010. The judgment convicted
defendant, upon a jury verdict, of burglary in the first degree and
criminal contempt in the first degree.

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

     Memorandum: On appeal from a judgment convicting him following a
jury trial of burglary in the first degree (Penal Law § 140.30 [3])
and criminal contempt in the first degree (§ 215.51 [b] [vi]),
defendant contends that County Court should have granted his motion to
dismiss the indictment because the integrity of the grand jury
proceeding was impaired. That contention, however, is “not preserved
for our review because defendant did not move to dismiss the
indictment pursuant to CPL 210.35 (5)” (People v Workman, 277 AD2d
1029, 1031, lv denied 96 NY2d 764; see People v Beyor, 272 AD2d 929,
930, lv denied 95 NY2d 832; People v Sheltray, 244 AD2d 854, 854, lv
denied 91 NY2d 897). In any event, defendant’s contention lacks
merit. A grand jury proceeding is defective when it “fails to conform
to the requirements of article one hundred ninety [concerning grand
jury proceedings] to such degree that the integrity thereof is
impaired and prejudice to the defendant may result” (CPL 210.35 [5]
[emphasis added]; see People v Darby, 75 NY2d 449, 454). Although a
“defendant need not demonstrate actual prejudice under this statutory
scheme to prevail” (People v Sayavong, 83 NY2d 702, 709), “ ‘dismissal
of an indictment under CPL 210.35 (5) must meet a high test and is
limited to instances of prosecutorial misconduct, fraudulent conduct
or errors which potentially prejudice the ultimate decision reached by
the [g]rand [j]ury’ ” (Sheltray, 244 AD2d at 855; see People v Huston,
88 NY2d 400, 409). Here, there was no “articulable ‘likelihood of’ or
. . . ‘potential for’ prejudice” (People v Adessa, 89 NY2d 677, 686).
                                 -2-                          1241
                                                         KA 10-01835



     The brief reference to a prior incident of domestic violence
between defendant and the complainant did not impair the integrity of
the proceedings or result in potential prejudice to defendant “in
light of the overwhelming evidence before the grand jury that he
committed the crimes charged” (People v Ramirez, 298 AD2d 413, 413, lv
denied 99 NY2d 563; see People v Rivas, 260 AD2d 583, 583-584, lv
denied 93 NY2d 1025; People v McCreary, 186 AD2d 1070, 1071, lv denied
80 NY2d 1028). Furthermore, we conclude that the prosecutor conducted
an adequate voir dire of the grand juror who indicated that she was
possibly aware of the prior incident (see e.g. People v Monserrate, 24
Misc 3d 1229[A], 2009 NY Slip Op 51665[U], *5-6; cf. People v Revette,
48 AD3d 886, 887-888).

     Although defendant contends that the People failed to establish
that he used or threatened to use a dangerous instrument during the
commission of the burglary and thus that the evidence is legally
insufficient to support the burglary conviction, he “made only a
general motion to dismiss and thus failed to preserve his contention
for our review” (People v Johnson, 43 AD3d 1422, 1422, lv denied 9
NY3d 1035; see People v Gray, 86 NY2d 10, 19). In any event, the
evidence, viewed in the light most favorable to the prosecution (see
People v Contes, 60 NY2d 620, 621), is legally sufficient with respect
to the use or threatened use of a dangerous instrument. The evidence
at trial established that, when defendant broke into the complainant’s
apartment, he possessed a wooden or metal “baseball cue,” which he
used to “smash[]” through various doors in the residence, including a
wooden bedroom door. Such evidence is legally sufficient to establish
that the object used by defendant was an “instrument, article or
substance . . . which, under the circumstances in which it [was] used
. . . or threatened to be used, [was] readily capable of causing death
or other serious physical injury” (Penal Law § 10.00 [13]; see People
v Carter, 53 NY2d 113, 116; Matter of Shakiea B., 53 AD3d 1057, 1059;
People v Griffin, 24 AD3d 972, 973, lv denied 6 NY3d 834; see
generally People v Bleakley, 69 NY2d 490, 495). “Viewing the evidence
in light of the elements of the crimes as charged to the jury . . . ,
and affording the appropriate deference to the jury’s credibility
determinations . . . , we reject defendant’s [further] contention that
the verdict is against the weight of the evidence” (People v Miller,
93 AD3d 1305, 1305-1306; see People v Danielson, 9 NY3d 342, 348-349;
Bleakley, 69 NY2d at 495).

     Finally, we conclude that the sentence is not unduly harsh or
severe.




Entered:   November 9, 2012                     Frances E. Cafarell
                                                Clerk of the Court
