| People v Marte |
| 2012 NY Slip Op 06637 [99 AD3d 432] |
| October 4, 2012 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v OsirisMarte, Appellant. |
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Cyrus R. Vance, Jr., District Attorney, New York (Brian R. Pouliot of counsel), forrespondent.
Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), rendered October30, 2009, convicting defendant, after a jury trial, of assault in the first degree and criminalpossession of a weapon in the second degree, and sentencing him to concurrent terms of fiveyears, 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. The victim's identification of defendantas the person who shot him was corroborated by several aspects of a surveillance camerarecording, including the sound of people shouting defendant's name immediately before shotswere fired.
The court properly permitted the victim to testify, on cross-examination, that he decided toprovide an accurate identification of his assailant once the police showed him pictures of variouspeople. The answer was responsive to an inquiry by defense counsel into the victim's reason forbelatedly telling the truth. Although testimony about photo identifications is generallyinadmissible, here "defendant opened the door to such testimony and actually elicited it duringcross-examination" (People v Hernandez, 286 AD2d 623, 623 [1st Dept 2001], lvdenied 97 NY2d 682 [2001]). Accordingly, the court properly declined to interrupt thewitness's answer or declare a mistrial. Concur—Gonzalez, P.J., Saxe, DeGrasse, Freedmanand Román, JJ.