| People v Delvalle |
| 2014 NY Slip Op 01389 [114 AD3d 612] |
| February 27, 2014 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v William Delvalle, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Susan Gliner of counsel), forrespondent.
Judgment, Supreme Court, New York County (Lewis Bart Stone, J.), rendered June22, 2010, convicting defendant, after a jury trial, of murder in the second degree, robberyin the first degree (three counts) and robbery in the second degree, and sentencing him,as a second violent felony offender, to an aggregate term of 25 years to life, unanimouslyaffirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury'sdeterminations concerning credibility and identification. The testimony of an eyewitnessand a cooperating accomplice was corroborated by other evidence, including asurveillance videotape and telephone records of defendant and his accomplices from thenight of the robbery.
The court properly found that the cooperating accomplice's photo identification ofdefendant as a fellow participant in the crime was confirmatory (see People vRodriguez, 79 NY2d 445 [1992]). The circumstances provided assurance that theidentification was not the product of police suggestion (see People v Breland, 83NY2d 286, 294 [1994]).
The court properly exercised its discretion in denying defendant's motion to preclude,on the ground of belated disclosure, records showing the location where certain cellphone calls were made. The People disclosed these records as soon as they receivedthem, which was on the day before opening statements. Additional time to review therecords would have been a more appropriate remedy for any surprise to defendant, butdefendant requested no relief other than the drastic sanction of preclusion (see Peoplev Jenkins, 98 NY2d 280, 284 [2002]).
Defendant did not preserve his claim that the integrity of the grand jury proceedingwas impaired because the cooperating accomplice admitted at trial that a portion of hisgrand jury testimony was false, and we decline to review it in the interest of justice.Defendant's generalized reference in his pretrial omnibus motion to the People's failure tostrictly comply with the provisions of CPL article 190 was insufficient to preserve thisclaim (see People v Brown, 81 NY2d 798 [1993]), and in any event it could notpreserve an issue that did not ripen [*2]until the witnesstestified at trial. As an alternative holding, we find no basis for dismissing the indictment(see People v Williams, 7NY3d 15, 21 [2006]).
We perceive no basis for reducing the sentence. Concur—Tom, J.P.,Friedman, Saxe, Richter and Clark, JJ.