| People v Brown |
| 2008 NY Slip Op 09476 [57 AD3d 238] |
| December 4, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v TroyBrown, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Timothy C. Stone of counsel), forrespondent.
Judgment, Supreme Court, New York County (Richard D. Carruthers, J.), rendered May 29,2007, convicting defendant, after a jury trial, of criminal mischief in the third degree, andsentencing him, as a second felony offender, to a term of 1½ to 3 years, unanimouslyaffirmed.
The verdict was based on legally sufficient evidence and was not against the weight of theevidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's determinationsconcerning credibility, including its resolution of inconsistencies in testimony and its rejection ofdefendant's justification defense. The evidence satisfied the damage element of third-degreecriminal mischief where the victim gave firsthand testimony that he spent on repairsapproximately $990, which was almost four times the $250 statutory threshold, and thesurrounding circumstances warranted the inference that this figure was the actual and reasonablecost of repairs (see People v Garcia,29 AD3d 255, 263 [2006], lv denied 7 NY3d 789 [2006]; People v Jennis,299 AD2d 921 [2002], lv denied 99 NY2d 583 [2003]).
The court properly denied defendant's request for a missing witness charge, since the recordshows that the testimony of the uncalled witnesses would have been entirely cumulative, andwould have neither contradicted nor added to that of the other witnesses (see People vMacana, 84 NY2d 173, 180 [1994]).
The court properly denied defendant's CPL 330.30 (3) motion to set aside the verdict basedon newly discovered evidence. As defendant concedes, the alleged newly discovered evidencewas simply the identity of a previously unidentified potential witness. There was no indication ofwhat the witness would say, and the witness's identity, by itself, plainly did not qualify as thetype of exculpatory evidence set forth in the statute. Defendant improperly sought to use themotion as a substitute for interviewing the witness to determine what, if anything, he [*2]knew about the case. Defendant's remaining arguments about thecourt's disposition of the motion are without merit. Concur—Mazzarelli, J.P., Friedman,Gonzalez, Buckley and Sweeny, JJ.