| People v Bowman |
| 2010 NY Slip Op 07594 [77 AD3d 559] |
| October 26, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v EdwardBowman, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Sheryl Feldman of counsel), forrespondent.
Judgment, Supreme Court, New York County (John Cataldo, J.), rendered August 3, 2006,convicting defendant, after a jury trial, of assault in the first degree, attempted robbery in the first andsecond degrees and conspiracy in the fourth degree, and sentencing him, as a persistent violent felonyoffender, to an aggregate term of 20 years to life, unanimously affirmed.
Defendant did not preserve his challenges to the legal sufficiency of the evidence and we decline toreview them in the interest of justice. As an alternative holding, we also reject them on the merits. Wefurther find that the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342,348-349 [2007]). There is no basis for disturbing the jury's credibility determinations. The accomplice'stestimony was sufficiently corroborated by that of the victim and by telephone records (see e.g. People v Reome, 15 NY3d188, 192-193 [2010]). Defendant's acquittal of weapon possession charges does not warrant adifferent conclusion with respect to the sufficiency or weight of the evidence (see People vRayam, 94 NY2d 557 [2000]). To the extent that defendant is raising a repugnant verdicts claim,that claim is likewise unpreserved and without merit.
By failing to object, or by objecting on different grounds from those raised on appeal, defendantfailed to preserve his current objections to the admission of his testimony from a prior trial, statementsfrom his proffer session, and the victim's additional testimony after being recalled to the stand, and wedecline to review them in the interest of justice. As an alternative holding, we also reject them on themerits. Defendant's prior testimony was properly admitted as an admission (see e.g. People v Jenkins, 27 AD3d372, 373 [2006], lv denied 7 NY3d 757 [2006]). Even if defendant's statements from hisproffer session should have been admitted on rebuttal instead of the People's case-in-chief, the errorwas harmless (see People v Crimmins, 36 NY2d 230, 242 [1975]). As for the victim'sadditional testimony, "the order of proof at trial is committed to the sound discretion of the trial court"(People v Caban, 5 NY3d 143,151 [2005]), and it was a provident exercise of discretion under the circumstances presented to permitthe People to reopen their examination of the victim (see People v Hodge, 308 AD2d 413,414[*2][2003], lv denied 1 NY3d 540 [2003]), even aftercross-examination (see People v Delpilar, 293 AD2d 365 [2002], lv denied 98 NY2d696 [2002]).
Defendant was properly adjudicated a persistent violent felony offender. The court correctlyapplied the provision whereby the 10-year limitation on use of prior convictions is tolled for periods ofincarceration (see Penal Law § 70.04 [1] [b] [v]), and defendant's arguments to thecontrary are without merit.
Since defendant received the minimum sentence permitted by law (see Penal Law §70.08 [2], [3] [a-1]), this court has no authority to reduce it in the interest of justice. Defendant failed topreserve his argument that his mandatory minimum sentence was unconstitutionally excessive, and wedecline to review it in the interest of justice. As an alternative holding, we also reject it on the merits(see Rummel v Estelle, 445 US 263, 271 [1980]; People v Broadie, 37 NY2d 100,110-111 [1975], cert denied 423 US 950 [1975]).
Motion seeking enlargement of time to file pro se reply brief denied.
We have considered and rejected defendant's pro se claims. Concur—Tom, J.P., Saxe,Catterson, Renwick and DeGrasse, JJ.