| People v Smith |
| 2011 NY Slip Op 09203 [90 AD3d 561] |
| Dcmbr 20, 2011 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v FrankSmith, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Sara M. Zausmer of counsel), forrespondent.
Judgment, Supreme Court, New York County (John Cataldo, J.), rendered November 9,2009, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him,as a second violent felony offender, to a term of 12 years, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348 [2007]). There is nobasis for disturbing the jury's credibility determinations, including its resolution of allegedinconsistencies in testimony. The court properly exercised its discretion in declining to permitdefendant to recall the victim for further cross-examination. Defendant sought to recall the victimto lay a foundation for an allegedly inconsistent statement that the victim made to defendant'scousin shortly after the crime. Defense counsel could have elicited the alleged inconsistency oncross-examination, and bringing back the victim and then the cousin for additional testimonywould have delayed the trial. The alleged inconsistency had very limited probative value, and itwas cumulative to other impeachment material (see People v Crawford, 39 AD3d 426, 427 [2007], lvdenied 9 NY3d 864 [2007]).
Accordingly, there was no violation of defendant's right to confront witnesses and present adefense (see Crane v Kentucky, 476 US 683, 689-690 [1986]; Delaware v VanArsdall, 475 US 673, 678-679 [1986]). In any event, any error in declining to permitdefendant to recall the victim was harmless (see People v Crimmins, 36 NY2d 230[1975]).
Defendant also claims his trial counsel rendered ineffective assistance by failing to lay afoundation for the alleged inconsistent statement. However, given the minimal impeachmentvalue of the alleged inconsistency, defendant has not satisfied the prejudice prong of anineffective assistance claim under either the state or federal standards (see People vBenevento, 91 NY2d 708, 713-714 [1998]; Strickland v Washington, 466 US 668,694 [1984]). Concur—Saxe, J.P., Catterson, Moskowitz, Acosta and Renwick, JJ.