| People v Roman |
| 2015 NY Slip Op 01535 [125 AD3d 515] |
| February 19, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Peter Roman, Appellant. |
Steven Banks, The Legal Aid Society, New York (Richard Joselson of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Susan Axelrod of counsel), forrespondent.
Judgment, Supreme Court, New York County (Richard D. Carruthers, J., at expertwitness ruling; Marcy L. Kahn, J., at jury trial and sentencing), rendered December 14,2010, as amended January 6, 2011, convicting defendant of attempted murder in thesecond degree, two counts of attempted assault in the first degree and two counts ofcriminal possession of a weapon in the second degree, and sentencing him to concurrentterms of 10 years on each conviction, unanimously affirmed.
We reject defendant's claim that the verdicts convicting him of attempted murder andattempted assault were against the weight of the evidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). The requisite intent for each crime was established bytestimony, by numerous witnesses, that defendant was aiming his pistol at the police andcivilian victims. Defendant's testimony that he was firing over the victims withoutintending to hit them presented a credibility issue for the jury, and in exercising ourfactual review powers, we find no basis for disturbing the jury's determinations.
The court properly denied defendant's motion to present expert testimony on falseconfessions, as defendant's motion papers, which contained no expert affidavit, did notestablish that the proposed expert's testimony would be "relevant to the defendant andinterrogation before the court" (see People v Bedessie, 19 NY3d 147, 161 [2012]).Moreover, we decline to second-guess the court's exercise of discretion as this is not acase that turns on the accuracy of defendant's confession with little or no other evidenceconnecting him to the crimes of which he was convicted (cf. People v Abney, 13 NY3d251, 268-269 [2009], citingPeople v LeGrand, 8 NY3d 449, 452 [2007]). In any event, there is noreasonable possibility that the proposed testimony would have resulted in a morefavorable verdict. Although the allegedly false confession was somewhat moreincriminating than defendant's trial testimony, the confession was generally exculpatorywith respect to the issue of intent.
After defense witnesses testified, the trial court properly exercised its discretion indenying defense counsel's request to delay the trial in order to provide him with a"substantial opportunity" to "prepare" defendant for his testimony (see Matter ofAnthony M., 63 NY2d 270, 283-284 [1984]). Counsel had ample time to consultwith his client before and during trial, and there is no reason to believe the defense wassurprised in any way by the testimony of its own [*2]witnesses. Defendant did not preserve his claim that he wasdenied adequate time to consult with counsel regarding his decision to testify, and wedecline to review it in the interest of justice. As an alternative holding, we reject it on themerits, because the record establishes that at the time of the request for a delay of thetrial, defendant had already announced his decision to testify.
Defendant's challenges to the prosecutor's summation are unpreserved, and wedecline to review them in the interest of justice. As an alternative holding, we reject themon the merits.
We perceive no basis for reducing the sentence. Concur—Friedman, J.P.,Andrias, Moskowitz, DeGrasse and Richter, JJ.