| People v Sharpe |
| 2010 NY Slip Op 01384 [70 AD3d 1184] |
| February 18, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Brian M.Sharpe, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Rita M. Basile of counsel), forrespondent.
Rose, J. Appeals (1) from a judgment of the County Court of Broome County (Pelella, J.),rendered September 19, 2007, upon a verdict convicting defendant of the crime of assault in thefirst degree, and (2) by permission, from two orders of said court, entered September 26, 2007and February 2, 2009, which denied defendant's motions pursuant to CPL 440.10 to, amongother things, vacate the judgment of conviction, without a hearing.
Defendant, his brother and their two companions were in a bar fight with the victim andanother patron of the bar. As a result, defendant and his brother were charged with assault in thefirst degree for having acted in concert by beating the victim with barstools. At their joint trial,one of the companions testified for the defense. Despite conflicting accounts of who struckwhom during the fight, the jury rejected defendant's claims that he had not struck the victim witha barstool and that he had acted in self-defense, and convicted him and his brother as charged.Shortly after sentencing in 2007, and again a year later in 2008, defendant moved unsuccessfullyto vacate his judgment of conviction pursuant CPL 440.10 (1) on the ground that the prosecutorimproperly prevented the other companion, Michael Rossi, from presenting exculpatoryevidence on defendant's behalf by informing Rossi's counsel that a favorable plea offer that hadbeen made to Rossi would be withdrawn if he testified for defendant and his brother. Defendantnow appeals from the judgment of conviction and, by permission, from the orders denying his[*2]posttrial motions.
Defendant initially argues that the evidence was legally insufficient because he was notunequivocally identified as one of the persons who had struck and injured the victim with abarstool. We cannot agree. Although the eyewitness accounts of who had struck the victim werenot consistent and, in court, the bartender identified the brothers, but mixed up their names, "thejury verdict constrains us to presume that it resolved these conflicts in the People's favor"(People v Dragoon, 256 AD2d 653, 653 [1998], lv denied 92 NY2d 1048[1999]). The bartender testified that, before the day of the fight, she had known defendant, sheknew where he lived and he had introduced his brother to her by name. She then described howshe had seen defendant throw the first punch and that, during the resulting melee, she hadwatched as both defendant and his brother beat the victim with barstools. Portions of this accountwere confirmed by the victim and the other patron who was also assaulted. Given the bartender'stestimony, it was not unreasonable for the jury to find that defendant, either directly or as hisbrother's accomplice, caused the victim's injuries (see People v Vargas, 60 AD3d 1236, 1237-1238 [2009], lvdenied 13 NY3d 750 [2009]; People v Kearney, 39 AD3d 964, 966 [2007], lv denied 9NY3d 846 [2007]; People vStanley, 23 AD3d 683, 685 [2005], lv denied 6 NY3d 818 [2006]).
Nor is the verdict contrary to the weight of the credible evidence. While a different verdictwould not have been unreasonable, the contradictions and inconsistencies in the testimony of thebartender, the victim and the other patron, which were fully explored by the parties andhighlighted to the jury, neither render their testimony unworthy of belief nor establish a basis todisturb the jury's assessment of witness credibility (see People v Romero, 7 NY3d 633, 642-643 [2006]; People v Casey, 61 AD3d 1011,1013 [2009], lv denied 12 NY3d 913 [2009]).
We are also unpersuaded that defendant's motions for relief under CPL 440.10 (1) shouldhave been granted. In support of his first motion, defendant presented an affidavit dated shortlyafter the trial in which Rossi stated that he would have testified on defendant's behalf if theprosecutor had not threatened to withdraw his plea offer. Rossi also briefly set forth what hisdescription of the bar fight would have been if he had testified. Notably, however, he did notstate that defendant had not or could not have struck the victim with a barstool. County Courtdenied the motion without a hearing on the ground that Rossi's testimony would have beencumulative and not exculpatory. In his second motion, defendant offered as newly discoveredand allegedly exculpatory evidence a 2008 affidavit in which Rossi stated for the first time thathe, himself, had struck the victim in the head with a barstool. County Court found that the newaffidavit was contradicted by Rossi's sworn plea allocution and his 2007 affidavit, as well as thetrial testimony of the bartender and of the companion who was called as a defense witness.Citing those inconsistencies, the court denied defendant's second motion because the newevidence would merely impeach or contradict the testimony at trial.
While we recognize that due process may be violated when the prosecution's conductdeprives a defendant of exculpatory testimony (see United States v Henricksen, 564 F2d197, 198 [5th Cir 1977]; People v Shapiro, 50 NY2d 747, 760 [1980]; People vTurner, 45 AD2d 749, 750 [1974]), we agree with County Court's reasoning that suchconduct is not a deprivation of a defendant's right to call witnesses where the proposed evidenceis not shown to be exculpatory (seePeople v Davis, 39 AD3d 873, 874 [2007], lv denied 9 NY3d 842 [2007]; People v Warren, 27 AD3d 496,497-498 [2006], lv denied 7 NY3d 796 [2006]; People v Scanlon, 231 AD2d852, 853 [1996]). Here, Rossi's 2007 account of the bar fight includes nothing that wouldexculpate defendant. Although Rossi's third account of the bar fight is arguably exculpatory, itstill would [*3]have been insufficient to vacate defendant'sconviction because it could have been discovered before trial by the exercise of due diligenceand merely impeached or contradicted the evidence at trial (see People v Tucker, 40 AD3d 1213, 1214 [2007], lvdenied 9 NY3d 882 [2007]; People v Venkatesan, 295 AD2d 635, 638 [2002], lvdenied 99 NY2d 565 [2002], cert denied 549 US 854 [2006]). Accordingly, we findno basis to disturb County Court's denial of defendant's CPL 440.10 motions.
Defendant's remaining contention that his right to remain silent was infringed when thePeople introduced evidence that he had avoided being questioned by police is unpreserved(see People v Goss, 229 AD2d 791, 792 [1996]) and, in any event, without merit.
Cardona, P.J., Peters, Kavanagh and McCarthy, JJ., concur. Ordered that the judgment andorders are affirmed.