| People v Smith |
| 2019 NY Slip Op 04332 [173 AD3d 414] |
| June 4, 2019 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Osmondo Smith, Appellant. |
Christina A. Swarns, Office of the Appellate Defender, New York (Caitlin Glass of counsel),for appellant.
Darcel D. Clark, District Attorney, Bronx (Noah J. Chamoy of counsel), for respondent.
Judgment, Supreme Court, Bronx County (John W. Carter, J.), rendered November 12, 2016,convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to aterm of 25 years to life, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is nobasis for disturbing the jury's credibility determinations. The initial reluctance of theeyewitnesses to provide defendant's name was satisfactorily explained, and their testimony wascorroborated by other evidence. Defendant's arguments concerning matters not presented to thejury is unavailing, because "[o]ur review of the . . . weight of the evidence is limitedto the evidence actually introduced at trial" (People v Dukes, 284 AD2d 236, 236 [1stDept 2001], lv denied 97 NY2d 681 [2001]).
The court properly admitted two 911 calls as excited utterances. Defendant did not preservehis claim that the calls should have been excluded on the ground that the callers did not indicatethat they had seen the crime, and we decline to review it in the interest of justice. As analternative holding, we find that it was inferable from the circumstances that the callers had theopportunity to observe personally what they described to the 911 operator (see generally People v Cummings, 31NY3d 204, 209-210 [2018]). In any event, all the information in the calls was cumulative toother evidence.
Defendant's arguments regarding a photo identification are without merit. The witness knewdefendant for several years and gave the police a shortened form of his first name. The use ofphotographs was solely for the purpose of finding the person the witness had already named.While the truthfulness of her accusation of defendant was at issue, "suggestiveness" was not aconcern (see People v Gissendanner, 48 NY2d 543, 552 [1979]).
To the extent the issue is reviewable, we find that the court providently exercised itsdiscretion in denying defendant's request for sealed records of the deceased's arrest for assault.Defendant's claim that those sealed records contained information relevant or helpful to hisdefense is based on speculation (seePeople v Gamble, 18 NY3d 386, 398-399 [2012]).
We perceive no basis for reducing the sentence. Concur—Acosta, P.J., Richter,Kapnick, Kahn, Kern, JJ.