Opinion
667 KA 13–01471
06-15-2018
The PEOPLE of the State of New York, Respondent, v. Robert COTTON, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER, THE ABBATOY LAW FIRM, PLLC (DAVID M. ABBATOY, JR., OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER, THE ABBATOY LAW FIRM, PLLC (DAVID M. ABBATOY, JR., OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
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 of attempted murder in the second degree ( Penal Law §§ 110.00, 125.25[1] ) and assault in the first degree (§ 120.10[1] ). Contrary to defendant's contention, he was not denied his right to present a defense by the prosecutor's refusal to request that the court confer immunity on a defense witness who would not agree to testify without immunity. It is well settled that the decision of a District Attorney to request immunity for a witness is discretionary " ‘and not reviewable unless the District Attorney acts with bad faith to deprive a defendant of his or her right to a fair trial’ " ( People v. Bolling, 24 A.D.3d 1195, 1196, 807 N.Y.S.2d 765 [4th Dept. 2005], affd 7 N.Y.3d 874, 826 N.Y.S.2d 174, 859 N.E.2d 913 [2006] ; see People v. Swank, 109 A.D.3d 1089, 1090, 971 N.Y.S.2d 611 [4th Dept. 2013], lv denied 23 N.Y.3d 968, 988 N.Y.S.2d 575, 11 N.E.3d 725 [2014] ; see generally CPL 50.30 ), and here the record is devoid of evidence of bad faith (see People v. Adams, 53 N.Y.2d 241, 247–248, 440 N.Y.S.2d 902, 423 N.E.2d 379 [1981] ). Viewing the evidence in light of the elements of the crimes 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 generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
We reject defendant's further contention that he was incorrectly sentenced as a second violent felony offender. Defendant's prior conviction of criminal possession of a weapon in the third degree pursuant to former Penal Law § 265.02(4), which was recodified in 2006 as the crime of criminal possession of a weapon in the second degree (see § 265.03[3] ), was properly considered a predicate violent felony conviction (see People v. Smith, 27 N.Y.3d 652, 670, 36 N.Y.S.3d 861, 57 N.E.3d 53 [2016] ).