| People v Sam |
| 2018 NY Slip Op 06122 [164 AD3d 1379] |
| September 19, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Dahan Sam, Appellant. |
Paul Skip Laisure, New York, NY (Cynthia Colt of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Diane R. Eisner ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (MichaelGary, J.), rendered September 3, 2014, convicting him of attempted aggravated assault upon apolice officer, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was being pursued through a housing project by a plainclothes police officerand two uniformed police officers when he tripped over a knee-high fence. As he fell, thedefendant allegedly turned and pointed his gun at the plainclothes officer and one of theuniformed officers, firing two shots. Two of the officers returned fire, striking the defendant.
The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellatereview (see CPL 470.05 [2]; People v Webster, 153 AD3d 733, 733 [2017]; People vBrown, 240 AD2d 587, 587-588 [1997]; People v Smith, 162 AD2d 736, 736[1990]). In any event, viewing the evidence in the light most favorable to the prosecution (seePeople v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt (see People v Danielson, 9 NY3d 342, 349 [2007]; People vWebster, 153 AD3d at 733; Peoplev Kirksey, 107 AD3d 825 [2013]). Moreover, in fulfilling our responsibility to conductan independent review of the weight of the evidence (see CPL 470.15 [5]), we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]). Contrary to the defendant's contention, the discrepancies and inconsistencies in thepolice officers' testimony were not of such magnitude as to render their testimony incredible (see People v Bessard, 80 AD3d773, 774 [2011]; People vSerna, 69 AD3d 886 [2010]). The discrepancies were fully explored at trial and could beconsidered by the jury in assessing the police officers' credibility (see People v Jones, 79 AD3d1073, 1074 [2010]).
The defendant's contention that the Supreme Court's Sandoval ruling (see Peoplev Sandoval, 34 NY2d 371 [1974]) deprived him of due process and a fair trial is withoutmerit (see People v Walker, 141AD3d 678 [2016]). That the prior conviction and the charged crime are both in the nature ofassault did not automatically preclude the prosecutor from using evidence of the prior convictionfor impeachment purposes (see People v Hayes, 97 NY2d 203, 208 [2002]; People vCarrion, 265 AD2d [*2]564, 565 [1999]). The defendantfailed to meet his burden of demonstrating that the prejudicial effect of the evidence sooutweighed its probative worth that its exclusion was warranted (see People v Walker,141 AD3d at 678; People v Lopez,37 AD3d 496, 497 [2007]). The likelihood that the scope of permissible cross-examinationwould have influenced the jury to believe that the defendant had a propensity to commit thecrime charged was not great (cf. Peoplev Calderon, 146 AD3d 967 [2017]). Moreover, that the defendant may have been theonly possible source of testimony for his defense increased the importance of his testimony andhis credibility, and did not mandate a ruling prohibiting inquiry about his prior conduct (see People v Edwards, 118 AD3d909 [2014]; People v Garcia, 45AD3d 860, 861 [2007]; People v Lopez, 37 AD3d at 497; People v Cruz, 21 AD3d 967, 968[2005]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Leventhal, J.P., Sgroi, Hinds-Radix and Duffy, JJ., concur.