| People v Sommerville |
| 2018 NY Slip Op 02038 [159 AD3d 1515] |
| March 23, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Sir PrinceSommerville, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of counsel), fordefendant-appellant.
John J. Flynn, District Attorney, Buffalo (David A. Heraty of counsel), for respondent.
Appeal from a judgment of the Erie County Court (Kenneth F. Case, J.), rendered February8, 2016. The judgment convicted defendant, upon a jury verdict, of assault in the second degreeand criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofassault in the second degree (Penal Law § 120.05 [2]) and criminal possession of aweapon in the second degree (§ 265.03 [3]). Viewing the evidence in light of theelements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we concludethat the verdict is not against the weight of the evidence with respect to defendant's identity as theperpetrator (see People v Henley,145 AD3d 1578, 1579 [4th Dept 2016], lv denied 29 NY3d 998 [2017], deniedreconsideration 29 NY3d 1080 [2017]; see generally People v Bleakley, 69 NY2d490, 495 [1987]). The victim testified that he was well acquainted with defendant, and heidentified defendant as the person who shot him. Moreover, defendant demonstrated hisconsciousness of guilt by attempting to bribe the victim into not testifying. The jury reasonablyfound defendant's exculpatory testimony incredible and rejected it (see People v Nunez, 147 AD3d423, 423 [1st Dept 2017], lv denied 29 NY3d 951 [2017]) and, notwithstandingminor inconsistencies in the testimony of the People's witnesses, "there is no basis for disturbingthe jury's determinations concerning credibility" (People v Sykes, 47 AD3d 501, 502 [1st Dept 2008], lvdenied 10 NY3d 817 [2008]; seePeople v McCallie, 37 AD3d 1129, 1130 [4th Dept 2007], lv denied 8 NY3d987 [2007]).
Contrary to defendant's contention, County Court responded meaningfully to a jury noterequesting a readback of testimony from the victim and the paramour of defendant's brotherregarding the bribery attempt (see generally CPL 310.30; People v O'Rama, 78NY2d 270, 276 [1991]), and it did not abuse its discretion in declining to read back a portion ofthe paramour's cross-examination that was not directly responsive to the jury's request. Althougha meaningful response to a request for a readback of testimony "is presumed to includecross-examination which impeaches the testimony to be read back" (People v Grant, 127 AD3d 990,991 [2d Dept 2015], lv denied 26 NY3d 968 [2015] [internal quotation marks omitted];see People v Berger, 188 AD2d 1073, 1074 [4th Dept 1992], lv denied 81 NY2d881 [1993]), the portion of the paramour's cross-examination at issue here did not in any wayimpeach her direct testimony about the bribery attempt. Thus, it cannot be said that the courtabused its "significant discretion in determining the proper scope and nature of the response" tothe jury's note (People v Taylor, 26NY3d 217, 224 [2015]; see People v Jones, 297 AD2d 256, 257 [1st Dept 2002],lv denied 98 NY2d 769 [2002]; cf. People v Morris, 147 AD3d 873, 874 [2d Dept 2017]).
Defendant's remaining contention is unpreserved for our review, and we decline to exerciseour power to review it as a matter of discretion in the interest of justice (see CPL [*2]470.15 [6] [a]). Present—Whalen, P.J., Smith, DeJoseph,NeMoyer and Winslow, JJ.