| People v Scott |
| 2013 NY Slip Op 04926 [107 AD3d 1635] |
| June 28, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v RickieR. Scott, Also Known as Stephan Sumpsster, Appellant. |
—[*1] Rickie R. Scott, defendant-appellant pro se. Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns,J.), rendered November 23, 2009. The judgment convicted defendant, upon a juryverdict, of murder in the second degree, criminal possession of a weapon in the seconddegree and criminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of murder in the second degree (Penal Law § 125.25 [1]), criminalpossession of a weapon in the second degree (§ 265.03 [1] [b]), and criminalpossession of a weapon in the third degree (§ 265.02 [5] [ii]). We note at the outsetthat defendant's first trial ended in a mistrial for reasons not relevant herein. With respectto the merits, we reject defendant's contention that Supreme Court's handling of thefourth jury note during deliberations warrants a new trial. Contrary to defendant'scontention, the court did not err in refusing to include a supplemental instruction onidentification in responding to the fourth jury note (see People v Allen, 69 NY2d915, 916 [1987]; see also People v Cruz, 272 AD2d 922, 923 [2000],affd 96 NY2d 857 [2001]). "The court was not obligated to go beyond the jury'srequest for information" in the fourth jury note (People v Cosby, 82 AD3d 63, 69 [2011], lv denied16 NY3d 857 [2011]), and we conclude that the court properly exercised its discretion informulating a response to that note (see generally People v Santi, 3 NY3d 234, 248 [2004]).Defendant failed to preserve for our review his contention that the court erred in failingto allow the jury to clarify its request with respect to the fourth jury note (seeCPL 470.05 [2]), and we decline to exercise our power to review it as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]).
Defendant further contends in his main and pro se supplemental briefs that he isentitled to a new trial because the court erroneously denied his motion for a mistrialbased on the fact that a witness who was unable to make a pretrial identification ofdefendant as the shooter thereafter identified him as the shooter at trial. We reject thatcontention. "[T]he decision to grant or deny [*2]a motionfor a mistrial is within the trial court's discretion" (People v Ortiz, 54 NY2d 288,292 [1981]; see People v Robinson, 309 AD2d 1228, 1228 [2003], lvdenied 1 NY3d 579 [2003]), and we perceive no abuse of discretion here. Theinability of a witness to identify a defendant during a pretrial procedure goes to theweight to be afforded that witness's identification testimony at trial, not its admissibility(see People v Grant, 94AD3d 1139, 1140-1141 [2012], lv denied 20 NY3d 1099 [2013]; Peoplev Gangler, 227 AD2d 946, 947-948 [1996], lv denied 88 NY2d 985 [1996],lv denied 89 NY2d 922 [1996]). Defendant also contends that he is entitled to anew trial because the court erred in denying his severance motion, but we conclude thatthe court "neither abused nor improvidently exercised its discretion in denying themotion for severance" (People vSutton, 71 AD3d 1396, 1397 [2010], lv denied 15 NY3d 778 [2010]).
Contrary to defendant's further contention, the conviction is supported by legallysufficient evidence (seegenerally People v Delamota, 18 NY3d 107, 110 [2011]; People vBleakley, 69 NY2d 490, 495 [1987]). Moreover, viewing the evidence in light of thecrimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict is not against the weight of the evidence (see generallyBleakley, 69 NY2d at 495). "Where . . . witness credibility is ofparamount importance to the determination of guilt or innocence, [we] must give [g]reatdeference . . . [to the jury's] opportunity to view the witnesses, hear thetestimony and observe demeanor" (People v Allen, 93 AD3d 1144, 1147 [2012], lvdenied 19 NY3d 956 [2012] [internal quotation marks omitted]). Defendant's furtherchallenge to the legal sufficiency of the evidence at the first trial is properly before usinasmuch as "[t]he Double Jeopardy Clause precludes a second trial if the evidence fromthe first trial is determined by the reviewing court to be legally insufficient" (People v Scerbo, 74 AD3d1730, 1731 [2010], lv denied 15 NY3d 757 [2010]). Nevertheless, we rejectthat contention. Viewing the evidence at the first trial in the light most favorable to thePeople (see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that it islegally sufficient to support the conviction (see Allen, 93 AD3d at 1147; seegenerally Bleakley, 69 NY2d at 495).
Defendant's contention in his main and pro se supplemental briefs that he wasdeprived of effective assistance of counsel based on defense counsel's failure to call acertain person as an alibi witness is based on matters outside the record on appeal, "andthus the proper procedural vehicle for raising that contention is by way of a motionpursuant to CPL 440.10" (People v Wittman, 103 AD3d 1206, 1206 [2013], lvdenied 21 NY3d 915 [2013]; see People v King, 90 AD3d 1533, 1534 [2011], lvdenied 18 NY3d 959 [2012]). To the extent that we are able to review defendant'scontention that he was denied effective assistance of counsel based on the record beforeus, we conclude that defense counsel provided meaningful representation (seegenerally People v Baldi, 54 NY2d 137, 147 [1981]). Finally, the sentence is notunduly harsh or severe. Present—Smith, J.P., Fahey, Carni, Valentino and Whalen,JJ.