| People v Muhammad |
| 2009 NY Slip Op 06885 [66 AD3d 1332] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v ShahidMuhammad, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Raymond C. Herman of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Joseph S. Forma, J.), renderedMay 24, 2004. The judgment convicted defendant, upon a jury verdict, of assault in the firstdegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofassault in the first degree (Penal Law § 120.10 [1]). Defendant was acquitted of, inter alia,criminal possession of a weapon in the second degree (§ 265.03 [former (2)]), and hecontends that the verdict is repugnant insofar as he was found guilty of the charge of assault butacquitted of the charge of criminal possession of a weapon. We reject that contention. "As longas '[Supreme Court's] charge did not preclude the jury from concluding that defendant initiallypossessed the loaded pistol without intending to use it unlawfully against another, but decided tofire the gun at [the victim] as events unfolded,' a verdict finding defendant guilty of intentionalassault but not guilty of possession with unlawful intent is not repugnant" (People vAfrika, 291 AD2d 880, 881 [2002], lv denied 98 NY2d 648 [2002]). Contrary to thefurther contention of defendant, the court properly exercised its discretion in denying his requestto present expert testimony on the reliability of eyewitness identification. The victim, the soleeyewitness who identified defendant, testified that he had known defendant for many years, "andthere is no reason to believe that the jury required expert testimony in order to evaluate theidentification testimony" (People vPacheco, 38 AD3d 686, 688 [2007], lv denied 9 NY3d 849 [2007]; see People v Austin, 38 AD3d1246, 1247 [2007], lv denied 8 NY3d 981 [2007]). Finally, viewing the evidence inlight of the elements of the crime of assault in the first degree as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), and according great deference to the jury's resolution of credibility issues,we conclude that the verdict is not against the weight of the evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]). Present—Scudder, P.J., Hurlbutt, Peradotto,Green and Gorski, JJ.