| People v Almonte |
| 2019 NY Slip Op 02622 [171 AD3d 470] |
| April 4, 2019 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Joel Almonte, Appellant. |
Seymour W. James, Jr., The Legal Aid Society, New York (Rachel L. Pecker of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Andrew E. Seewald of counsel), forrespondent.
Judgment, Supreme Court, New York County (Laura A. Ward, J. at alibi preclusion; ArleneD. Goldberg, J. at jury trial and sentencing), rendered September 10, 2015, convicting defendantof two counts of assault in the first degree, and sentencing him, as a second violent felonyoffender, to concurrent terms of 15 years, unanimously affirmed.
The verdict was supported by legally sufficient evidence and was not against the weight ofthe evidence (People v Danielson, 9NY3d 342, 348-349 [2007]). Moreover, we find the evidence to be overwhelming. There isno basis to disturb the jury's credibility determinations. Although there was no direct evidencelinking defendant to the crime, the circumstantial evidence, including testimony aboutdefendant's location, activity and attire minutes before the assault, permits no reasonableinference except that defendant was the assailant depicted in a videotape slashing the victim'sface (see People v Thompson, 6AD3d 319 [1st Dept 2004], lv denied 3 NY3d 649 [2004]). Defendant's challenge tothe proof of disfigurement required for one of his assault convictions (see Penal Law§ 120.10 [2]) is unavailing. The evidence adduced at trial established that there wasonly a six month lapse between injury and trial and included uncontroverted medical testimonythat the victim suffered a severe and permanent disfiguring laceration that penetrated three layersof skin and required 100 stitches to close. Although the victim did not testify, photographs andexpert testimony supported the conclusion that she remained seriously disfigured (see generally People v McKinnon, 15NY3d 311, 316 [2010]).
Defendant did not preserve his argument that he was constitutionally entitled to present alibitestimony notwithstanding his failure to file a timely and sufficient alibi notice under CPL 250.20(see People v Brown, 306 AD2d 12 [1st Dept 2003], lv denied 100 NY2d 592[2003]), and we decline to review it in the interest of justice. As an alternative holding, we findthat although the notice was untimely, as well as being defective in that it only stated the locationof the alibi (defendant's residence) without naming any witnesses, preclusion was improperbecause the record does not support a finding of willfulness (see Taylor v Illinois, 484 US400, 414-415 [1988]). Nevertheless, we find that the error was harmless (see People vCrimmins, 36 NY2d 230, 237 [1975]). As noted, the proof of identity was overwhelming,and defendant never named any alibi witnesses or provided any details of any potentialtestimony. Accordingly, there is nothing to indicate that alibi testimony would have had anypossibility of affecting the verdict.
Defendant's claim that his counsel rendered ineffective assistance by failing to file a timelyand proper alibi notice is unreviewable on direct appeal because, as noted, it involves mattersoutside the record relating to the existence and value of any potential alibi testimony.Accordingly, since defendant has not made a CPL 440.10 motion, the merits of theineffectiveness claim may not be addressed on appeal (see People v Alvarez, 223 AD2d401 [1st Dept 1996], lv denied 88 NY2d 980 [1996]). Concur—Sweeny, J.P.,Manzanet-Daniels, Kern, Oing, Singh, JJ.