| People v Guitierrez |
| 2010 NY Slip Op 05151 [74 AD3d 1834] |
| June 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JoseGuitierrez, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Kenneth R. Fisher, J.),rendered May 15, 2003. The judgment convicted defendant, upon a jury verdict, of assault in thefirst degree.
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]). The record does not supportdefendant's contention that Supreme Court limited the jury to considering defendant's guilt undera theory of accessorial liability only. We note that, even if the court had done so, defendantwould not have been prejudiced by that limitation inasmuch as the court would have removed thepossibility of conviction as a principal, leaving only one theory of liability, i.e., accompliceliability, under which defendant could be convicted (cf. People v Dockery, 272 AD2d247, 248 [2000], lv denied 95 NY2d 934 [2000]). We reject defendant's furthercontention that the court erred in charging a theory of accessorial liability, in view of the factthat the evidence presented at trial supports that theory (see generally People v Rivera,84 NY2d 766, 769-770 [1995]; People v Duncan, 46 NY2d 74, 79-80 [1978], reargdenied 46 NY2d 940 [1979], cert denied 442 US 910 [1979], reargdismissed 56 NY2d 646 [1982]). Contrary to defendant's further contention, the court didnot abuse its discretion in permitting the prosecutor to recall a witness well before the close ofthe People's case and, after a limited cross-examination of that witness, to address anidentification issue that the prosecutor failed to address during his direct examination of thatwitness (see People v Guiterrez, 270 AD2d 184 [2000]; People v Ketchmore,132 AD2d 889, 891 n [1987], lv denied 70 NY2d 752 [1987]; see generally People v Dennis, 55AD3d 385 [2008], lv denied 12 NY3d 783 [2009]). Present—Centra, J.P.,Fahey, Peradotto, Lindley and Pine, JJ.