Opinion
06-13-2017
The PEOPLE of the State of New York, Respondent, v. Donald DeSUSA, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (David Crow of counsel), and Kramer Levin Naftalis & Frankel, New York (Evie Spanos of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Robert McIver of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (David Crow of counsel), and Kramer Levin Naftalis & Frankel, New York (Evie Spanos of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Robert McIver of counsel), for respondent.
FRIEDMAN, J.P., MAZZARELLI, MOSKOWITZ, GISCHE, GESMER, JJ.
Judgment, Supreme Court, Bronx County (Barbara F. Newman, J. at mistrial declaration; Seth L. Marvin, J. at jury trial and sentencing), rendered December 16, 2013, convicting defendant of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 5 years, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's credibility determinations. It does not avail defendant to rely on statements made at arraignment and hearing testimony that were not adduced at trial (see People v. Dukes, 284 A.D.2d 236, 726 N.Y.S.2d 554 [1st Dept.2001], lv. denied 97 N.Y.2d 681, 738 N.Y.S.2d 296, 764 N.E.2d 400 [2001] ).
The court properly exercised its discretion in declaring a mistrial sua sponte before the completion of jury selection, over both parties' objections, because of a scheduling problem that was unavoidable given the information available to the court at the time (see People v. Chandler, 30 A.D.3d 161, 815 N.Y.S.2d 567 [1st Dept.2006], lv. denied 7 N.Y.3d 786, 821 N.Y.S.2d 816, 854 N.E.2d 1280 [2006] ).
Defendant's challenge to a jury charge to the effect that the People were not obligated to present certain kinds of evidence is unpreserved, and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits (see People v. Jiovani, 258 A.D.2d 277, 685 N.Y.S.2d 66 [1st Dept.1999], lv. denied 93 N.Y.S.2d 900, 689 N.Y.S.2d 712, 711 N.E.2d 988 [1999] ).