| People v Terry |
| 2007 NY Slip Op 07942 [44 AD3d 1157] |
| October 25, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v James A.Terry, Appellant. |
—[*1] John R. Trice, District Attorney, Elmira (Susan R. Rider of counsel), forrespondent.
Kane, J. Appeals (1) from a judgment of the County Court of Chemung County (Hayden, J.),rendered June 13, 2003, upon a verdict convicting defendant of the crimes of burglary in thesecond degree and assault in the third degree (two counts), and (2) by permission, from an orderof said court, entered July 25, 2006, which denied defendant's motion pursuant to CPL 440.10 tovacate the judgment of conviction, without a hearing.
In May 2001, as a result of an earlier confrontation, defendant and three other individualsforced their way into an apartment and beat up the tenant. In April 2002, a grand jury indicteddefendant on charges of burglary in the second degree, gang assault in the second degree,attempted assault in the second degree and assault in the second degree. Defendant was notarrested on these charges until after indictment. Following protracted pretrial proceedings and atrial, a jury convicted defendant of burglary in the second degree and, as lesser included offenses,assault in the third degree (two counts). County Court sentenced defendant to an aggregate prisonterm of seven years and five years of postrelease supervision. The court later [*2]denied defendant's CPL 440.10 motion to vacate his conviction.Defendant appeals the judgment of conviction and the order denying his posttrial motion.
This Court previously decided, in the cases of two codefendants, that the 10-month and16-day delay between the incident and indictment did not deprive those defendants of dueprocess because the crimes charged were serious, no real prejudice was demonstrated, and anypretrial incarceration was due to parole violations and not these criminal charges (People v Williams, 16 AD3d 980,981 [2005], lv denied 5 NY3d 771 [2005]; People v Magar, 8 AD3d 689, 690 [2004], lv denied 3NY3d 677 [2004]). The same result is appropriate here.
Defendant's contentions regarding the legal sufficiency and weight of the evidence are merelyattacks on the credibility of prosecution witnesses. Several witnesses testified that defendant andhis companions kicked down a locked door to gain entrance to the apartment and, once inside,defendant punched the tenant in the face and kicked him. Despite contradictions in the testimony,and giving deference to the jury's credibility determinations after observing the witnesses, we donot find the testimony incredible as a matter of law (see People v Lozada, 41 AD3d 1042, 1043 [2007]; People v Rosado, 36 AD3d 965,967 [2007]). The convictions are supported by legally sufficient evidence and are not against theweight of the evidence.
The People properly questioned the victim on redirect examination concerning a letter hesigned, based upon defense counsel's questioning which opened the door to further inquiry. NoConfrontation Clause violation occurred as defendant was permitted to question the person whosigned the letter, thereby adopting it as his own thoughts, regardless of who wrote the words.
One of defendant's convictions for assault in the third degree must be vacated. Although thecharged crimes of gang assault in the second degree and assault in the second degree havedifferent elements, the lesser included offenses for those two counts were identical. Under theconstitutional guarantee against double jeopardy, defendant could not be punished twice for thesame offense (see People v Wells, 299 AD2d 430, 430 [2002]). Accordingly, only one ofhis convictions for assault in the third degree can stand.
County Court did not err in denying defendant's CPL 440.10 motion without a hearing.Defendant's allegations of ineffective assistance, based upon counsel's failure to move for amistrial and permitting codefendant's counsel to make certain arguments, were not properly partof a CPL 440.10 motion as they could have been raised on his direct appeal (see CPL440.10 [2] [b]). In any event, counsel cannot control the arguments made by a codefendant'scounsel, and the failure to move for a mistrial does not, by itself, amount to ineffective assistanceunder the circumstances here (see People v Laviolette, 307 AD2d 541, 544 [2003], lvdenied 100 NY2d 643 [2003]).
The main thrust of defendant's motion concerned an investigator's report stating that thevictim did not write a certain letter to County Court, but merely signed it after codefendant'scousin wrote it. Viewing the report as newly discovered evidence, County Court was not requiredto grant defendant's motion because the report does not create a probability that the [*3]verdict would have been different if the report was received at trial(see CPL 440.10 [1] [g]; People v Hogencamp, 300 AD2d 734, 736 [2002]).Similarly, even if the report could be categorized as Rosario material, its nondisclosureprior to trial must contribute to the verdict to require the granting of a CPL 440.10 motion (see People v Tucker, 40 AD3d1213, 1215 [2007], lv denied 9 NY3d 882 [2007]). Here, the damaging informationin the report came out at trial through the victim's testimony. Thus, we fail to see how the reportitself could have changed the outcome of the trial.
Defendant's remaining arguments have been reviewed and found unpersuasive.
Crew III, J.P., Mugglin, Rose and Lahtinen, JJ., concur. Ordered that the judgment ismodified, on the law, by reversing defendant's conviction of assault in the third degree undercount 2 of the indictment; said count dismissed and the sentence imposed thereon vacated; and,as so modified affirmed. Ordered that the order is affirmed.