| People v Bonhomme |
| 2011 NY Slip Op 05293 [85 AD3d 939] |
| June 14, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v VetalBonhomme, Appellant. |
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Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Wetzel, J.), rendered March 24, 2010, convicting him of murder in the second degree andcriminal possession of a weapon in the second degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellatereview (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 491-492 [2008]; People vGray, 86 NY2d 10 [1995]). In any event, viewing the evidence in the light most favorable tothe prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legallysufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (see CPL470.15 [5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d383, 410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt wasnot against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The Supreme Court properly declared that one of the People's witnesses was hostile becauseshe gave testimony which tended to disprove the People's case, and thus, the Supreme Courtproperly permitted the People to impeach the witness with her prior inconsistent statements(see CPL 60.35 [1]; cf. People v Saez, 69 NY2d 802, 804 [1987]; People vFitzpatrick, 40 NY2d 44, 50 [1976]; People v Spurgeon, 63 AD3d 863, 864 [2009]). The Supreme Courtgave a limiting instruction at the close of the People's case, rather than at the time that thewitness was impeached. Because the evidence of the defendant's guilt was overwhelming, andthere was no significant probability that the delay in giving the limiting instruction contributed tohis conviction, any error was harmless (see People v Crimmins, 36 NY2d 230 [1975]).
The Supreme Court properly admitted a copy of a DVD showing the crime scene because thechain of custody established the authenticity of the DVD by clear and convincing evidence andthat it had not been tampered with (see People v Ely, 68 NY2d 520 [1986]; People vMcGee, 49 NY2d 48 [1979], cert [*2]denied sub nom.Waters v New York, 446 US 942 [1980]).
The Supreme Court properly admitted the defendant's cell phone records through thetestimony of the Sprint Nextel records custodian, who testified that she was familiar with therecord-keeping practices of the company, that the defendant's cell phone records were made inthe regular course of business, that it was the regular course of business to make the records, andthat the records were made contemporaneously with incoming and outgoing phone calls (seePeople v Kennedy, 68 NY2d 569 [1986]; CPLR 4518).
The Supreme Court properly denied the defendant's "for cause" challenge to a prospectivejuror who was a police officer and was friendly with several assistant district attorneys in theWestchester County District Attorney's office. Upon voir dire questioning, the witnessunequivocally stated that he could be impartial (see People v Johnson, 94 NY2d 600, 614[2000]; People v Culhane, 33 NY2d 90, 108 n 3 [1973]).
The defendant's remaining contentions are without merit. Dillon, J.P., Leventhal, Hall andLott, JJ., concur.