| People v Lindsay |
| 2015 NY Slip Op 06605 [131 AD3d 625] |
| August 19, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v George A. Lindsay, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Tammy Linn of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, and John F. McGoldrick of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Latella, J.), rendered September 15, 2010, convicting him of assault in the first degreeand criminal possession of a weapon in the second degree (two counts), upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that the Supreme Court improperly denied his request for atranscript of his alibi witness's grand jury testimony, before the witness took the stand attrial, for the purpose of preventing the prosecutor's anticipated efforts to impeach thewitness at trial through the use of that grand jury testimony. However, the defendantfailed to preserve this contention for appellate review, as he did not raise that specificbasis for his request in the Supreme Court (see CPL 470.05 [2]; People vOrtiz, 250 AD2d 372, 374 [1998]). In any event, the Supreme Court properly deniedthe defendant's request, since it was made prior to the testimony and the attemptedimpeachment of the alibi witness with her grand jury testimony. The defense was notentitled to the transcript until after the prosecutor used it to impeach the witness oncross-examination (see People vParchment, 92 AD3d 699, 700 [2012]; People v Gladden, 72 AD2d 568,569 [1979]; see also People v Hill, 285 AD2d 474, 475 [2001]), and thedefendant did not request the transcript either during or after the cross-examination of thewitness.
Contrary to the defendant's contention, the People laid a proper foundation prior toquestioning his alibi witness with respect to her delay in coming forward withexculpatory evidence (see People v Dawson, 50 NY2d 311, 321 [1980]; People v Joseph, 97 AD3d838, 839 [2012]; People vFelipe, 66 AD3d 919 [2009]; People v Wright, 62 AD3d 916 [2009]; People vStokes, 282 AD2d 553, 553 [2001]), and there was no representation that she wasexplicitly instructed to remain silent by the defendant's previous attorney (see Peoplev Dawson, 50 NY2d at 322; People v Felipe, 66 AD3d at 920). To the extentthe defendant claims that there was no delay by the witness in coming forward, defensecounsel was free to elicit testimony in support of that assertion during redirectexamination of the witness (seePeople v Jackson, 45 AD3d 433, 434 [2007]; People v Patterson, 137AD2d 632 [1988]).
Additionally, the Supreme Court providently exercised its discretion in permittingthe impeachment of the alibi witness with her omission from her grand jury testimony ofa critical [*2]fact to which she testified at trial, since itwould have been unnatural to omit that fact from the exculpatory narrative she providedto the grand jury (see People vBruno, 34 AD3d 220, 220 [2006]; People v Montalvo, 285 AD2d 384,385 [2001]; see also People vGreene, 110 AD3d 827, 828-829 [2013]; cf. People v Bornholdt, 33NY2d 75, 88 [1973]).
Contrary to the defendant's contention, the evidence of serious physical injuryadduced at trial was legally sufficient to support his conviction of assault in the firstdegree. The prosecution presented the complainant's testimony and medical recordsdescribing the nature and extent of the complainant's gunshot wounds, the medicaltreatment he received, his lengthy and painful convalescence, and the ongoing adverseeffects he suffered due to his injuries. Viewing the evidence in the light most favorableto the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that itwas legally sufficient to establish the defendant's guilt of that crime beyond a reasonabledoubt by demonstrating that the complainant sustained a serious physical injury withinthe meaning of Penal Law § 10.00 (10) (see People v McLawrence, 114 AD3d 964 [2014];People v Moreno, 233 AD2d 531 [1996]; People v Wright, 221 AD2d577 [1995]; People v Meneses, 195 AD2d 527 [1993]). Moreover, upon theexercise of our factual review power (see CPL 470.15 [5]), we are satisfied thatthe verdict of guilt of that crime was not against the weight of the evidence (see People v Romero, 7 NY3d633, 644-645 [2006]). Mastro, J.P., Austin, Cohen and Barros, JJ., concur.