| People v Delamota |
| 2010 NY Slip Op 05580 [74 AD3d 1225] |
| June 22, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Sebastian Delamota, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C.Abbot, and Daniel Bresnahan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Knopf, J.),rendered February 13, 2008, convicting him of robbery in the first degree, criminal possession ofa weapon in the third degree, and menacing in the second degree, upon a jury verdict, andimposing sentence. The appeal brings up for review the denial, after a hearing (Grosso, J.), ofthat branch of the defendant's omnibus motion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, he failed to show that the evidence adduced at trialconstituted additional pertinent facts which could not have been discovered by him withreasonable diligence before the determination of that branch of his omnibus motion which was tosuppress identification evidence and which would have materially affected that determination(see CPL 710.40 [4]; People v Clark, 88 NY2d 552, 555 [1996]; People vFuentes, 53 NY2d 892, 894 [1981]). Accordingly, under the circumstances present here, thetrial court did not improvidently exercise its discretion in denying the defendant's motion, madeduring trial, for leave to renew that branch of his omnibus motion which was to suppressidentification testimony (see People v Rhodes, 60 AD3d 705 [2009]; People vRobinson, 280 AD2d 687, 687 [2001]; People v Kidd, 247 AD2d 269, 269 [1998];People v Ferguson, 237 AD2d 187, 188 [1997]; People v Rosa, 231 AD2d 534,536 [1996]; People v DeJesus, 222 AD2d 449, 450 [1995]; see generally People vWhiting, 35 AD3d 637, 638 [2006]; People v Scarpetta, 11 AD3d 490, 491 [2004]).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to disprove thedefendant's alibi (see Matter of Jeffrey V., 185 AD2d 240, 241 [1992]; People vRose, 166 AD2d 680, 681 [1990]; People v Tullies, 135 AD2d 852, 853 [1987];see also People v McCall, 277 AD2d 467, 468 [2000]; People v Marinus, 254AD2d 372, 373 [1998]), and to establish the defendant's identity as the perpetrator (seePeople v Calabria, 3 NY3d 80, 82 [2004]; People v Watson, 12 AD3d 709 [2004];People v Gonzalez, 3 AD3d 579, 579 [2004]; People v Fermin, 235 AD2d 328,328 [1997]; People v Williams, 187 AD2d 547, 547-548 [1992]). Moreover, in fulfillingour responsibility to conduct an independent review of the weight of the evidence (seeCPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accord greatdeference to the factfinder'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]; People v Gaimari,176 NY 84, 94 [1903]). Upon reviewing the record here, we are satisfied that the verdict of guiltwas not against the weight of the evidence (see People v [*2]Romero, 7 NY3d 633, 644 [2006]; People vJean-Marie, 67 AD3d 704, 705 [2009]; People v Mojica, 62 AD3d 100, 113 [2009];People v Gumbs, 58 AD3d 641, 641-642 [2009]; People v Sirghi, 273 AD2d417, 418 [2000]; People v Moore, 227 AD2d 227, 227 [1996]; People vDelasmatas-Bujosa, 180 AD2d 811, 812 [1992]; People v Griffith, 171 AD2d 678,678 [1991]; People v Bishop, 167 AD2d 551, 551-552 [1990]). Additionally, contrary tothe defendant's contention, the complainant's testimony was not incredible as a matter of law(see People v Calabria, 3 NY3d 80, 82 [2004]; People v Fratello, 92 NY2d 565,573 [1998]; People v Scott, 65 AD3d 707, 707 [2009]; People v Middleton, 36AD3d 941, 942 [2007]; People v Marchese, 185 AD2d 899, 900 [1992]; People vGiles, 132 AD2d 706, 707 [1987]).
Furthermore, the trial court did not err in declining to declare the defendant's first witnesshostile during defense counsel's direct examination inasmuch as the witness was neitherunwilling nor reluctant to testify (see People v Forte, 70 AD3d 963, 964 [2010];People v Marshall, 220 AD2d 692, 693 [1995]).
The defendant was not deprived of the effective assistance of counsel. "The record in thiscase demonstrates that defense counsel effectively cross-examined the People's witnesses,presented an alibi defense, and made competent opening and closing statements which wereconsistent with that defense" (People v Pollard, 220 AD2d 463, 464 [1995]; seePeople v Ryan, 90 NY2d 822, 823-824 [1997]; People v Velez, 197 AD2d 651, 652[1993]; People v Ortiz, 174 AD2d 763 [1991]). Moreover, "[the] defendant has failed todemonstrate the absence of strategic or other legitimate explanations for counsel's allegedshortcomings" (People v Taylor, 1 NY3d 174, 176 [2003] [internal quotation marksomitted]; see People v Williams, 59 AD3d 576, 577 [2009]; People v Demolaire,55 AD3d 621, 622 [2008]; People v Coleman, 37 AD3d 489, 490 [2007]). Accordingly,"[the] defendant has failed to establish that he was denied his constitutional right to effectiveassistance of counsel" (People v Ryan, 90 NY2d 822, 824 [1997]; see People vRivera, 71 NY2d 705, 708 [1988]).
The defendant's remaining contentions are unpreserved for appellate review. Skelos, J.P.,Santucci, Dickerson and Leventhal, JJ., concur. [Prior Case History: 18 Misc 3d 1130(A),2008 NY Slip Op 50244(U).]