| People v Willock |
| 2015 NY Slip Op 01480 [125 AD3d 901] |
| February 18, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Omar Willock, Appellant. |
Gail Gray, New York, N.Y., for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, KeithDolan, and Claibourne Henry of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Firetog, J.), rendered July 6, 2009, convicting him of murder in the second degree, upona jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
In the early morning hours of May 12, 2007, a man was fatally stabbed after hebecame embroiled in a physical altercation with another individual on a public sidewalkin Brooklyn. The defendant became a suspect after an eyewitness identified him as theperpetrator. At trial, the defendant claimed that he had been misidentified because, infact, his identical twin brother was the perpetrator, not him. On appeal, the defendantchallenges the weight of the evidence supporting his identification. In fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (seeCPL 470.15 [5]; People vDanielson, 9 NY3d 342, 348 [2007]), we nevertheless accord great deference tothe factfinder's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]). Among other things, there was testimony from an eyewitness whoknew the defendant and his identical twin brother from the neighborhood, and saw thedefendant almost every day. She was present during the altercation between thedefendant and the victim, and she even tried to break up the fight. This eyewitnesstestified that the defendant, not his twin brother, fought with the victim. She explainedthat she could tell the twins apart because they had different facial structures. Contrary tothe defendant's contention, her testimony was not incredible or unreliable.
The defendant also argues that the trial court erred when it precluded him fromintroducing a detective's testimony that his twin brother was being investigated forstabbing a coworker in the back. As a general matter, a defendant is entitled to "show thepossibility that a third party committed the crime with which he is charged"(People v Washington, 99 AD2d 848, 849 [1984], affd 64 NY2d 961[1985]; see also Chambers v Mississippi, 410 US 284 [1973]), through theadmission of relevant and [*2]otherwise admissibleevidence (see People v Primo, 96 NY2d 351 [2001]). However, "[a] court may,in its discretion, exclude relevant evidence if its probative value is outweighed by theprospect of trial delay, undue prejudice to the opposing party, confusing the issues ormisleading the jury" (id. at 355). Further, as pertinent to this case, "[t]headmission of evidence of third-party culpability may not rest on mere suspicion orsurmise" (id. at 357; seePeople v Schulz, 4 NY3d 521, 528 [2005]). Here, contrary to the defendant'scontention, the trial court providently exercised its discretion in precluding the defensefrom calling the detective to testify because the proffered testimony was not sufficientlyprobative to outweigh the countervailing risks of trial delay, undue prejudice, confusingthe issues, or misleading the jury. The mere fact that the defendant's brother had beeninvestigated for stabbing a coworker did not significantly increase the chance that hecommitted the instant crime (cf. People v Washington, 99 AD2d 848 [1984]).Further, there was no showing that the stabbing incidents were sufficiently similar tosupport the inference that the defendant's twin brother, rather than the defendant himself,may have committed the instant crime.
The defendant's challenge to the propriety of the trial court's supplemental jurycharge is unpreserved for appellate review (see CPL 470.05 [2]) and, in anyevent, without merit.
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Mastro, J.P., Leventhal, Miller and Maltese, JJ., concur.