Opinion
70 KA 14–00561
02-02-2018
The PEOPLE of the State of New York, Respondent, v. Andre L. BARNES, Defendant–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.
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.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Memorandum: On appeal from a judgment convicting him following a jury trial of assault in the second degree ( Penal Law § 120.05[2] ), defendant contends that the verdict is against the weight of the evidence because the victim's testimony was "manifestly suspect" for various reasons. We reject that contention. Defendant initially challenges the victim's testimony on the ground that she was a prostitute, drug addict and petty thief who was testifying pursuant to a cooperation agreement. Nevertheless, even if a witness has an "unsavory and criminal background, and testifie[s] pursuant to a cooperation agreement," such facts merely raise credibility issues for the jury to resolve ( People v. Chin, 69 A.D.3d 752, 753, 897 N.Y.S.2d 106 [2d Dept. 2010], lv denied 15 N.Y.3d 772, 907 N.Y.S.2d 461, 933 N.E.2d 1054 [2010] ; see People v. Woods, 142 A.D.3d 1356, 1358, 38 N.Y.S.3d 337 [4th Dept. 2016] ; People v. Davis, 120 A.D.3d 1542, 1543, 993 N.Y.S.2d 209 [4th Dept. 2014], lv. denied 26 N.Y.3d 1087, 23 N.Y.S.3d 644, 44 N.E.3d 942 [2015] ). Although "[t]he credibility of the victim was undoubtedly open to question as she was an acknowledged user of heroin and crack cocaine and had mental health issues, as well as a varied criminal history that included crimes of deceit," her testimony was corroborated in certain respects ( People v. Bowman, 139 A.D.3d 1251, 1252, 32 N.Y.S.3d 362 [3d Dept. 2016], lv denied 28 N.Y.3d 927, 40 N.Y.S.3d 355, 63 N.E.3d 75 [2016] ).
Contrary to defendant's further contention, the verdict is not against the weight of the evidence with respect to defendant's use of a dangerous instrument. Although defendant correctly concedes that a telephone receiver can constitute a dangerous instrument (see e.g. People v. Williams, 40 A.D.3d 402, 403, 836 N.Y.S.2d 137 [1st Dept. 2007], lv denied 9 N.Y.3d 883, 842 N.Y.S.2d 795, 874 N.E.2d 762 [2007] ; People v. Prior, 23 A.D.3d 1076, 1076, 804 N.Y.S.2d 877 [4th Dept. 2005], lv denied 6 N.Y.3d 817, 812 N.Y.S.2d 456, 845 N.E.2d 1287 [2006] ; Matter of Brittanie G., 6 A.D.3d 1213, 1214, 775 N.Y.S.2d 702 [4th Dept. 2004] ), he contends that it is "utter [ly] implausib[le] ... that [the victim] was assaulted with a telephone receiver." We conclude that the victim's testimony that defendant assaulted her with a telephone 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 A.D.3d 1469, 1470, 900 N.Y.S.2d 802 [4th Dept. 2010], lv denied 15 N.Y.3d 778, 907 N.Y.S.2d 467, 933 N.E.2d 1060 [2010] ), and the fact that the receiver "was not recovered does not render ... the verdict against the weight of the evidence" ( People v. Cohens, 81 A.D.3d 1442, 1444, 917 N.Y.S.2d 492 [4th Dept. 2011], lv denied 16 N.Y.3d 894, 926 N.Y.S.2d 29, 949 N.E.2d 977 [2011] ; see People v. Ryder, 146 A.D.3d 1022, 1025, 44 N.Y.S.3d 598 [3d Dept. 2017], lv denied 29 N.Y.3d 1086, 64 N.Y.S.3d 176, 86 N.E.3d 263 [2017] ; People v. Pine, 126 A.D.3d 1112, 1116, 4 N.Y.S.3d 746 [3d Dept. 2015], lv denied 27 N.Y.3d 1004, 38 N.Y.S.3d 113, 59 N.E.3d 1225 [2016] ).
"Where, as here, witness credibility is of paramount importance to the determination of guilt or innocence, we must give great deference to the jury, given its opportunity to view the witnesses and observe their demeanor" ( People v. Streeter, 118 A.D.3d 1287, 1288, 987 N.Y.S.2d 775 [4th Dept. 2014], lv denied 23 N.Y.3d 1068, 994 N.Y.S.2d 327, 18 N.E.3d 1148 [2014], reconsideration denied 24 N.Y.3d 1047, 998 N.Y.S.2d 317, 23 N.E.3d 160 [2014] [internal quotation marks omitted]; see generally People v. Gay, 105 A.D.3d 1427, 1428, 963 N.Y.S.2d 898 [4th Dept. 2013] ). The victim's "testimony that defendant [used a receiver] was uncorroborated, but also unrefuted," and we reject defendant's contention that the jury failed to give the evidence the weight it should be accorded in finding that he used a dangerous instrument ( People v. Ingram, 95 A.D.3d 1376, 1377, 943 N.Y.S.2d 311 [3d Dept. 2012], lv denied 19 N.Y.3d 974, 950 N.Y.S.2d 357, 973 N.E.2d 767 [2012] ). Viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
We have reviewed the contentions raised by defendant in his pro se supplemental brief and conclude that they are not preserved for our review (see CPL 470.05[2] ) and, in any event, lack merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.