| People v Barnes |
| 2018 NY Slip Op 00668 [158 AD3d 1072] |
| February 2, 2018<> |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Andre L.Barnes, Appellant. |
William G. Pixley, Pittsford, for defendant-appellant.
Andre L. Barnes, defendant-appellant pro se.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), for respondent.
Appeal from a judgment of the Monroe County Court (Douglas A. Randall, J.), renderedMarch 14, 2014. The judgment convicted defendant, upon a jury verdict, of assault in the seconddegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of assault inthe second degree (Penal Law § 120.05 [2]), defendant contends that the verdict isagainst the weight of the evidence because the victim's testimony was "manifestly suspect" forvarious reasons. We reject that contention. Defendant initially challenges the victim's testimonyon the ground that she was a prostitute, drug addict and petty thief who was testifying pursuant toa cooperation agreement. Nevertheless, even if a witness has an "unsavory and criminalbackground, and testifie[s] pursuant to a cooperation agreement," such facts merely raisecredibility issues for the jury to resolve (People v Chin, 69 AD3d 752, 753 [2d Dept 2010], lvdenied 15 NY3d 772 [2010]; seePeople v Woods, 142 AD3d 1356, 1358 [4th Dept 2016]; People v Davis, 120 AD3d 1542,1543 [4th Dept 2014], lv denied 26 NY3d 1087 [2015]). Although "[t]he credibility ofthe victim was undoubtedly open to question as she was an acknowledged user of heroin andcrack cocaine and had mental health issues, as well as a varied criminal history that includedcrimes of deceit," her testimony was corroborated in certain respects (People v Bowman, 139 AD3d1251, 1252 [3d Dept 2016], lv denied 28 NY3d 927 [2016]).
Contrary to defendant's further contention, the verdict is not against the weight of theevidence with respect to defendant's use of a dangerous instrument. Although defendant correctlyconcedes that a telephone receiver can constitute a dangerous instrument (see e.g. People v Williams, 40 AD3d402, 403 [1st Dept 2007], lv denied 9 NY3d 883 [2007]; People v Prior, 23 AD3d 1076,1076 [4th Dept 2005], lv denied 6 NY3d 817 [2006]; Matter of Brittanie G., 6 AD3d 1213, 1214 [4th Dept 2004]), hecontends that it is "utter[ly] implausib[le] . . . that [the victim] was assaulted with atelephone receiver." We conclude that the victim's testimony that defendant assaulted her with atelephone receiver was not incredible as a matter of law, i.e., " 'manifestly untrue,physically impossible, contrary to experience, or self-contradictory' " (People v Smith, 73 AD3d 1469,1470 [4th Dept 2010], lv denied 15 NY3d 778 [2010]), and the fact that the receiver "wasnot recovered does not render . . . the verdict against the weight of the evidence" (People v Cohens, 81 AD3d 1442,1444 [4th Dept 2011], lv denied 16 NY3d 894 [2011]; see People v Ryder, 146 AD3d1022, 1025 [3d Dept 2017], lv denied 29 NY3d 1086 [2017]; People v Pine, 126 AD3d 1112,1116 [3d Dept 2015], lv denied 27 NY3d 1004 [2016]).
"Where, as here, witness credibility is of paramount importance to the determination of guiltor innocence, we must give great deference to the jury, given its opportunity to view thewitnesses and observe their demeanor" (People v Streeter, 118 AD3d 1287, 1288 [4th Dept 2014], lvdenied 23 NY3d 1068 [2014], denied reconsideration 24 NY3d 1047 [2014] [internalquotation marks omitted]; see generallyPeople v Gay, 105 AD3d 1427, 1428 [4th Dept 2013]). The victim's "testimony thatdefendant [used a receiver] was uncorroborated, but also unrefuted," and we reject defendant'scontention that the jury failed to give the evidence the weight it should be accorded in findingthat he used a dangerous instrument (People v Ingram, 95 AD3d 1376, 1377 [3d Dept 2012], lvdenied 19 NY3d 974 [2012]). Viewing the evidence in light of the elements of the crime ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against theweight of the evidence (see People v Bleakley, 69 NY2d 490, 495 [1987]).
We have reviewed the contentions raised by defendant in his pro se supplemental brief andconclude that they are not preserved for our review (see CPL 470.05 [2]) and, in anyevent, lack merit. Present—Peradotto, J.P., Carni, Lindley, Curran and Troutman, JJ.