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