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

1363
KA 09-02637
PRESENT: SCUDDER, P.J., CENTRA, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DANNY HURST, DEFENDANT-APPELLANT.


SCHWARTZ & PONTERIO, PLLC, NEW YORK CITY (MATTHEW F. SCHWARTZ OF
COUNSEL), FOR DEFENDANT-APPELLANT.

GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Livingston County Court (Robert B.
Wiggins, J.), rendered December 1, 2009. The judgment convicted
defendant, upon a jury verdict, of grand larceny in the second degree,
grand larceny in the third degree (two counts) and falsifying business
records in the first degree (three 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 grand larceny in the second degree (Penal Law §
155.40 [1]), two counts of grand larceny in the third degree (former §
155.35), and three counts of falsifying business records in the first
degree (§ 175.10). Defendant’s contention that the People failed to
instruct the grand jury on the defense of a claim of right for the
larceny counts is not preserved for our review (see § 155.15 [1];
People v West, 4 AD3d 791, 792-793; see also People v Fisher, 101 AD3d
1786, 1786-1787, lv denied 20 NY3d 1098). Defendant’s contention that
he was deprived of his constitutional right to present evidence and to
confront witnesses against him when County Court precluded certain
documents from evidence and limited cross-examination of a witness is
likewise not preserved for our review (see People v Angelo, 88 NY2d
217, 222; People v Bryant, 93 AD3d 1344, 1344-1345; People v
Bernardez, 63 AD3d 1174, 1175, lv denied 13 NY3d 794). We decline to
exercise our power to review those contentions as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]).

     Defendant also failed to preserve for our review his contention
that the evidence is legally insufficient to support the conviction
with respect to the counts of falsifying business records in the first
degree inasmuch as his motion for a trial order of dismissal was not
“specifically directed” at the alleged error now asserted on appeal
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                                                         KA 09-02637

(People v Gray, 86 NY2d 10, 19 [internal quotation marks omitted]).
In any event, that contention is without merit (see generally People v
Bleakley, 69 NY2d 490, 495). Defendant further contends that the
evidence is legally insufficient to support the conviction with
respect to the counts of grand larceny in the second and third degrees
because he received the payments associated with those counts under a
claim of right. We reject that contention. That defense applies
where “the property was appropriated under a claim of right made in
good faith” (Penal Law § 155.15 [1]). The People had the burden of
disproving that defense beyond a reasonable doubt (see People v Zona,
14 NY3d 488, 492-493; People v Chesler, 50 NY2d 203, 210), and we
conclude that they met that burden here. Contrary to defendant’s
further contention, viewing the evidence in light of the elements of
the crimes of grand larceny in the second and third degrees as charged
to the jury (see People v Danielson, 9 NY3d 342, 349), we conclude
that the verdict is not against the weight of the evidence (see
generally Bleakley, 69 NY2d at 495).

      Defendant further contends that he was denied effective
assistance of counsel based on various errors made by defense counsel.
We conclude that defendant failed to meet his burden of demonstrating
the absence of a strategic or other legitimate explanation for many of
defense counsel’s alleged errors (see People v Benevento, 91 NY2d 708,
712). In addition, defendant was “not denied effective assistance of
. . . counsel merely because counsel [failed to] make a motion or
argument that ha[d] little or no chance of success” (People v Stultz,
2 NY3d 277, 287, rearg denied 3 NY3d 702). To the extent that defense
counsel committed errors, they were not “sufficiently egregious and
prejudicial as to comprise . . . defendant’s right to a fair trial”
(People v Caban, 5 NY3d 143, 152). Viewing the evidence, the law, and
the circumstances of this case in totality and at the time of
representation, we conclude that defendant received effective
assistance of counsel (see generally People v Baldi, 54 NY2d 137,
147).

     Finally, we reject defendant’s contention that the court erred in
failing to conduct a probing inquiry of a juror whom defense counsel
reported to the court as appearing to be asleep during the jury
charge. “[I]t is well established that [a] juror who has not heard
all the evidence is grossly unqualified to render a verdict” (People v
Jean-Philippe, 101 AD3d 1582, 1582 [internal quotation marks
omitted]). Thus, a juror who has fallen asleep and missed part of the
trial should be dismissed (see id. at 1582-1583). Here, defense
counsel reported to the court that a juror “had [her] eyes closed and
head over,” and he was “concerned that she didn’t hear all of the
instructions.” The court, however, indicated that it had “watched her
carefully, she did close her eyes, she was not sleeping.” Inasmuch as
“the court had the benefit of its own observations, further inquiry
was not required” (People v Lennon, 37 AD3d 853, 854, lv denied 9 NY3d
846; see People v Booker, 49 AD3d 658, 660, lv denied 10 NY3d 859;
                                 -3-                          1363
                                                         KA 09-02637

People v Phillips, 34 AD3d 1231, 1231, lv denied 8 NY3d 848).




Entered:   January 3, 2014                     Frances E. Cafarell
                                               Clerk of the Court
