People v Barone (Anthony)

[*1] People v Barone (Anthony) 2005 NY Slip Op 50235(U) Decided on March 1, 2005 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 1, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and RIOS, JJ.
2003-1542 Q CR

The People of the State of New York, Respondent,

against

Anthony M. Barone, Appellant.

Appeal by defendant from a judgment of the Criminal Court, Queens County (R. McGann, J.), rendered July 14, 2003, convicting him, after a jury trial, of petit larceny (Penal Law § 155.25), criminal possession of stolen property in the fifth degree

(Penal Law § 165.40) and trespass (Penal Law § 140.05), and imposing sentence.

Judgment of conviction unanimously affirmed.

Defendant was arrested for allegedly taking an air compressor from the complainant's property in June 2002. Following a jury trial, he was convicted of petit larceny, criminal possession of stolen property in the fifth degree, and trespass.
The complainant testified that she observed defendant pulling a piece of equipment down her driveway and phoned her husband to find out if he had sent someone to the house to "pick up something." Her husband told her that he had not, that the piece of equipment was an air compressor, and to call 911, which she did. The complainant's husband testified that when he arrived home, he saw defendant standing in front of his house next to a parked car, the compressor was on the curb next to the car, and defendant did not have permission to take the compressor or to enter onto his driveway. The compressor was never recovered by the police. Viewing the evidence in the light most favorable to the People, we find that it was legally sufficient to establish defendant's guilt of the crimes charged beyond a [*2]reasonable doubt (see People v Contes, 60 NY2d 620 [1983]) and, upon the exercise of our factual review power, we further find that the verdict was not against the weight of the evidence (see CPL 470.15 [5]).

Inasmuch as, at trial, defense counsel provided no support for his assertions that facts and other relevant circumstances existed which were sufficient to raise an inference that the People used their peremptory challenges to exclude a potential juror because of her race, we find that defendant did not rebut the presumption that the People's peremptory challenge was proper (see Batson v Kentucky, 476 US 79 [1986]; People v Jenkins, 84 NY2d 1001 [1994]; People v Childress, 81 NY2d 263 [1993]). Thus, the trial court properly denied defendant's Batson claim. In addition, the court properly precluded the testimony of defendant's witness regarding requests made to the People to secure and produce the air compressor for fingerprint dusting in that such testimony would have been collateral (see e.g. People v Inniss, 83 NY2d 653 [1994]), and properly declined to give a missing evidence charge since the compressor was not recovered from defendant, and there were no facts establishing that the People, in bad faith, lost or destroyed the evidence (see e.g. People v Conway, 297 AD2d 398 [2002]; People v Carpenter, 187 AD2d 519 [1992]).

We note that "[n]either the nature of our adversary system in which facts are elicited and determined nor the constitutional command to afford a fair trial inhibit a Trial Judge from assuming an active role in the resolution of the truth" (People v DeJesus, 42 NY2d 519, 523 [1977]). As "part of the responsibility of insuring a fair trial [the court] may seize the affirmative, when proper and necessary, to clarify perplexing issues, to develop significant factual information, to enforce propriety, orderliness, decorum and expedition in trial" (id.). Moreover, it is well settled that the trial court has broad discretion over the nature and extent of cross-examination (see People v Schwartzman, 24 NY2d 241 [1969]). On the present record, we cannot conclude that the court herein unduly or improperly interjected itself into the proceedings or displayed bias towards defendant. The record indicates that the court acted properly to clarify testimony and to prevent confusion by the jury. The court did not abuse its discretion by excessively and unnecessarily interfering with counsel, expressing personal opinion, or distracting the jury's attention from the evidence (see People v Ashby, 72 AD2d 506 [1979]). Defendant's remaining contentions lack merit or are unpreserved for appellate review.

Decision Date: March 01, 2005