| People v Jacobs |
| 2009 NY Slip Op 06186 [65 AD3d 594] |
| August 11, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JamieJacobs, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco, RichardLongworth Hecht, and Anthony J. Servino of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (Smith,J.), rendered October 6, 2004, convicting him of attempted murder in the second degree, assaultin the first degree, criminal use of a firearm in the first degree, criminal possession of a weaponin the second degree, and criminal possession of a weapon in the third degree, upon a juryverdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, ofthat branch of the defendant's omnibus motion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
The County Court properly denied the defendant's motion pursuant to CPL 330.30 (3) to setaside the verdict based on the ground of newly-discovered evidence. The court found thetestimony of a new witness presented by the defendant at the hearing on the motion to be lackingin credibility, and that determination is entitled to deference on appeal (see People v Britton, 49 AD3d893 [2008]). The record supports the County Court's assessment of the witness's credibility,as well as its determination that the witness's testimony was not "of such character as to create aprobability that had such evidence been received at the trial the verdict would have been morefavorable to the defendant" (CPL 330.30 [3]; see People v Hicks, 6 NY3d 737, 739 [2005]; People v Rivera,108 AD2d 829 [1985]).
At a Rodriguez hearing (see People v Rodriguez, 79 NY2d 445 [1992]), thePeople established that the complaining witness had sufficient familiarity with the defendant sothat his photographic identification was merely confirmatory. The People properly establishedthis prior knowledge through the testimony of a police officer (see People v Waterman, 56 AD3d329 [2008]).
Viewing the evidence in the light most favorable to the prosecution (see People v Contes,60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guiltbeyond a reasonable doubt. In fulfilling our responsibility to conduct an independent review ofthe weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the recordhere, we are satisfied that the verdict of guilt was not against the weight of evidence (see People [*2]v Romero, 7 NY3d 633 [2006]).
Contrary to the defendant's contention, he was not denied his right to the effective assistanceof counsel (see People v Baldi, 54 NY2d 137, 147 [1981]; see also Strickland vWashington, 466 US 668 [1984]).
The defendant's contention that the County Court erroneously failed to deliver a missingwitness charge is unpreserved for appellate review (see CPL 470.05 [2]). In any event,this contention is without merit inasmuch as the defendant never established that the witness inquestion was in the People's control or that his whereabouts could have been ascertained withdue diligence (see People v Williams,47 AD3d 854 [2008]).
The defendant's remaining contention is without merit. Prudenti, P.J., Miller, Covello andAustin, JJ., concur.