Opinion
09-21-2016
The PEOPLE, etc., respondent, v. David A. KAPPEN, appellant.
Barket Marion Epstein & Kearon, LLP, Garden City, N.Y. (Donna Aldea of counsel), for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Daniel Bresnahan and Joseph Mogelnicki of counsel), for respondent.
Barket Marion Epstein & Kearon, LLP, Garden City, N.Y. (Donna Aldea of counsel), for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Daniel Bresnahan and Joseph Mogelnicki of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., SHERI S. ROMAN, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (St.George, J.), rendered October 9, 2012, convicting him of criminal possession of a controlled substance in the first degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant participated in a scheme to transport cocaine from California to New York by secreting it inside of a flat screen television and shipping it via UPS to an auto servicing store where an accomplice worked.
Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), 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 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
Although the prosecutor improperly elicited testimony which constituted inadmissible hearsay, the grand jury proceeding did not fail to conform to the requirements of CPL article 190 to such a degree that the integrity thereof was impaired and, in view of the sufficiency of the independent, admissible proof which supported the indictment, no prejudice to the defendant could have resulted from the improperly elicited testimony (see People v. Simon, 101 A.D.3d 908, 909, 954 N.Y.S.2d 899 ; People v. Miles, 76 A.D.3d 645, 905 N.Y.S.2d 775 ; People v. Read, 71 A.D.3d 1167, 1168, 896 N.Y.S.2d 912 ; People v. Walton, 70 A.D.3d 871, 873, 895 N.Y.S.2d 175 ).
The defendant contends that double jeopardy precluded his second trial and required dismissal of the indictment because the evidence against him at his first trial, which ended in a mistrial, was legally insufficient to support a conviction (see
People v. Dann, 100 A.D.2d 909, 474 N.Y.S.2d 566 ; People v. Tingue, 91 A.D.2d 166, 458 N.Y.S.2d 429 ; Rafferty v. Owens, 82 A.D.2d 582, 442 N.Y.S.2d 571 ). However, since the defendant himself sought and obtained a mistrial without prejudice, he waived his present claim that the second trial constituted double jeopardy (see United States v. Scott, 437 U.S. 82, 93, 98 S.Ct. 2187, 57 L.Ed.2d 65 ; Matter of Gorghan v. DeAngelis, 7 N.Y.3d 470, 473, 824 N.Y.S.2d 202, 857 N.E.2d 523 ; Matter of Davis v. Brown, 87 N.Y.2d 626, 630, 641 N.Y.S.2d 819, 664 N.E.2d 884 ; People v. Ferguson, 67 N.Y.2d 383, 388, 502 N.Y.S.2d 972, 494 N.E.2d 77 ; People v. Nicholson, 35 A.D.3d 886, 889–890, 829 N.Y.S.2d 548 ; People v. Brown, 147 A.D.2d 579, 580, 538 N.Y.S.2d 494 ).
Contrary to the defendant's contention, the Supreme Court properly gave the jury an expanded knowledge charge. That the evidence of the defendant's guilt was circumstantial, and his possession of the cocaine was accessorial and constructive, did not constitute a bar to the charge as given (see People v. Ford, 66 N.Y.2d 428, 442–443, 497 N.Y.S.2d 637, 488 N.E.2d 458 ; People v. Sierra, 45 N.Y.2d 56, 60, 407 N.Y.S.2d 669, 379 N.E.2d 196 ; People v. Reisman, 29 N.Y.2d 278, 285, 327 N.Y.S.2d 342, 277 N.E.2d 396 ; People v. Brown, 133 A.D.3d 772, 773, 20 N.Y.S.3d 390 ; People v. Skyles, 266 A.D.2d 321, 322, 698 N.Y.S.2d 286 ; People v. Cuesta, 199 A.D.2d 101, 101–102, 605 N.Y.S.2d 64 ).
The record supports the Supreme Court's determination that it was not necessary to either disqualify a juror who expressed discomfort at rendering a verdict after it came to her attention that a relative of the defendant might be a student at the school her daughter attended or conduct a more probing inquiry regarding her ability to continue to serve on the jury. The court fully explored the nature of the juror's concerns during an in camera proceeding, at which the court conducted a “probing and tactful inquiry” and made a “careful consideration of the juror's answers and demeanor” (People v. Paige, 134 A.D.3d 1048, 1054, 22 N.Y.S.3d 220 [internal quotation marks omitted]; see People v. Mejias, 21 N.Y.3d 73, 79, 966 N.Y.S.2d 764, 989 N.E.2d 26 ; People v. Buford, 69 N.Y.2d 290, 299, 514 N.Y.S.2d 191, 506 N.E.2d 901 ), and providently exercised its discretion in finding that the juror did not possess a state of mind that would have prevented her from rendering an impartial verdict and, therefore, was not grossly unqualified (see People v. Parrilla, 27 N.Y.3d 400, 33 N.Y.S.3d 842, 53 N.E.3d 719 ).