| People v Thomas |
| 2016 NY Slip Op 03538 [139 AD3d 764] |
| May 4, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v English Thomas, Appellant. |
Gail Gray, New York, NY, for appellant.
James A. McCarty, Acting District Attorney, White Plains, NY (RaffaelinaGianfrancesco, Laurie G. Sapakoff, and Steven A. Bender of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Zambelli, J.), rendered June 3, 2013, convicting him of murder in the second degree,assault in the first degree, burglary in the first degree, and tampering with physicalevidence, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant failed to preserve for appellate review his contention that the verdicton his convictions of murder in the second degree, assault in the first degree, andburglary in the first degree was based on legally insufficient evidence because the solesource of the People's proof of guilt was a witness whose testimony was incredible as amatter of law (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 19[1995]; People v Crawford,38 AD3d 680, 681 [2007]). In any event, the defendant's contention is without merit.Rather, viewing the evidence in the light most favorable to the prosecution (seePeople v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient toestablish the defendant's guilt of these crimes beyond a reasonable doubt, as there existeda " 'valid line of reasoning and permissible inferences which could lead a rationalperson to the conclusion reached by the jury on the basis of the evidence attrial' " (People vCahill, 2 NY3d 14, 57 [2003], quoting People v Bleakley, 69 NY2d 490,495 [1987]). Moreover, in fulfilling our responsibility to conduct an independent reviewof the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342, 348-349 [2007]), we nevertheless accord great deference to the jury'sopportunity to view the witnesses, hear the testimony, and observe demeanor (seePeople v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d at495). Upon reviewing the record here, we are satisfied that the verdict of guilt as to thesecrimes was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). This was not acase in which all of the evidence of guilt came from a single prosecution witness whogave irreconcilable testimony pointing both to guilt and innocence, leaving the jurywithout basis, other than impermissible speculation, for its determination of either (see People v Hampton, 21NY3d 277, 288 [2013]; People v Delamota, 18 NY3d 107, 114 [2011]; People v Calabria, 3 NY3d80, 82 [2004]).
[*2] The Supreme Courtdid not improvidently exercise its discretion in permitting the defendant's girlfriend at thetime of the crimes in question, who did not witness them, to testify that, in her opinion,he was the individual depicted in certain photographs derived from a surveillance video,as there was some basis for concluding that she was more likely than the jury to correctlydetermine whether the defendant was depicted in the photographs (see People v Montanez, 135AD3d 528 [2016]; People vWatson, 121 AD3d 921, 922 [2014]; People v Alleyne, 114 AD3d 804 [2014]; People v Sanchez, 95 AD3d241, 249-250 [2012], affd 21 NY3d 216 [2013]; People v Ruiz, 7 AD3d737 [2004]; People v Russell, 165 AD2d 327, 333 [1991], affd 79NY2d 1024 [1992]).
The defendant's contention that the Supreme Court's response to a jury noteregarding the count of burglary in the first degree had the effect of directing a verdict ofguilt on that count is unpreserved for appellate review (see CPL 470.05 [2];People v Hoke, 62 NY2d 1022, 1023-1024 [1984]; People v Lee, 129 AD3d1295, 1299 [2015]; Peoplev Lugo, 81 AD3d 532, 533 [2011]). In any event, the court's response wasappropriate, and the jury is presumed to have followed the court's instructions that it wasthe exclusive arbiter of the facts (see People v Arroyo, 128 AD3d 843, 844 [2015]). Mastro,J.P., Chambers, Roman and Maltese, JJ., concur.