People v. Grasso

6 Citing cases

  1. People v. Walker

    2015 N.Y. Slip Op. 1344 (N.Y. App. Div. 2015)

    We note that "[r]esolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury" (People v Witherspoon, 66 AD3d 1456, 1457, lv denied 13 NY3d 942 [internal quotation marks omitted]), and we see no reason to disturb the jury's resolution of those issues in this case. Contrary to the contention of defendant in his pro se supplemental brief, we conclude that County Court properly granted the People's motion to amend the indictment to conform to the proof at trial inasmuch as "[t]he minor temporal correction did not change the theory of the prosecution or cause any prejudice to . . . defendant" (People v Hankins, 265 AD2d 572, 572, lv denied 94 NY2d 880; see CPL 200.70 [1]; People v Lane, 47 AD3d 1125, 1127, lv denied 10 NY3d 866; People v Grasso, 237 AD2d 741, 742, lv denied 89 NY2d 1035). Entered: February 13, 2015

  2. People v. Walker

    125 A.D.3d 1507 (N.Y. App. Div. 2015)   Cited 4 times

    note that โ€œ[r]esolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the juryโ€ (People v. Witherspoon, 66 A.D.3d 1456, 1457, 885 N.Y.S.2d 829, lv. denied 13 N.Y.3d 942, 895 N.Y.S.2d 333, 922 N.E.2d 922 [internal quotation marks omitted] ), and we see no reason to disturb the jury's resolution of those issues in this case. Contrary to the contention of defendant in his pro se supplemental brief, we conclude that County Court properly granted the People's motion to amend the indictment to conform to the proof at trial inasmuch as โ€œ[t]he minor temporal correction did not change the theory of the prosecution or cause any prejudice to ... defendantโ€ (People v. Hankins, 265 A.D.2d 572, 572, 697 N.Y.S.2d 144, lv. denied 94 N.Y.2d 880, 705 N.Y.S.2d 12, 726 N.E.2d 489 ; see CPL 200.70 [1 ]; People v. Lane, 47 A.D.3d 1125, 1127, 849 N.Y.S.2d 719, lv. denied 10 N.Y.3d 866, 860 N.Y.S.2d 492, 890 N.E.2d 255 ; People v. Grasso, 237 A.D.2d 741, 742, 655 N.Y.S.2d 160, lv. denied 89 N.Y.2d 1035, 659 N.Y.S.2d 866, 681 N.E.2d 1313 ). It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

  3. People v. John

    50 A.D.3d 1479 (N.Y. App. Div. 2008)   Cited 4 times

    In any event, there was no violation of the best evidence rule in this case. Under that rule, "a party may produce a substitute for an original . . . if the absence or unavailability of the original is satisfactorily explained and the mishap was innocent" ( People v Grasso, 237 AD2d 741, 742, lv denied 89 NY2d 1035). Here, a police officer testified at trial that he observed defendant on the surveillance videotape from a grocery store where he had purchased gasoline and that the image depicted in the photograph from the videotape, although smaller than the image in the videotape, was the same as that on the videotape.

  4. State v. Alexander

    37 A.D.3d 908 (N.Y. App. Div. 2007)   Cited 1 times

    We are precluded from considering whether the amendment here varied from the evidence before the grand jury because defendant did not include the grand jury minutes in the record on appeal ( see People v Mayo, 19 AD3d 710, 712). In any event, the change in time did not alter the prosecution's theory of the case ( see People v Hankins, 265 AD2d 572, lv denied 94 NY2d 880; People v Leon, 115 AD2d 907, 908). Nor was defendant prejudiced, as counsel acknowledged that documents disclosed prior to trial indicated that the sale occurred at 9:15 A.M. ( see People v Mayo, supra at 712; People v Grasso, 237 AD2d 741, 742, lv denied 89 NY2d 1035), defendant was not offering an alibi defense which would hinge on the time of the sale ( see People v Davis, 21 AD3d 590, 592), an overnight adjournment was granted and defendant declined any further adjournment ( see People v Grasso, supra at 742-743; People v Smith, 153 AD2d 995, 995, lv denied 75 NY2d 818). Defendant's conviction was supported by the weight of the evidence.

  5. People v. Waxter

    268 A.D.2d 899 (N.Y. App. Div. 2000)   Cited 5 times

    Defendant did not include the audiotape in the record on appeal. Next, in view of the fact that the quantity of the drug is not an element of the crime of criminal sale of a controlled substance in the third degree in violation of Penal Law ยง 220.39 (1) and in the absence of any competent showing of prejudice to defendant, we are not persuaded that County Court erred in permitting the People to amend the factual portion of counts one and three of the indictment by deleting any reference to the weight of the drug sold (see, CPL 200.70). Obviously, the amendment did not alter any element of the crime charged (see,People v. Spratley, 144 A.D.2d 769, 771, lv denied 73 N.Y.2d 896), increase the degree of the offense (compare, People v. Perez, 83 N.Y.2d 269, 274) or change the theory of the prosecution (see,People v. Grasso, 237 A.D.2d 741, 742, lv denied 89 N.Y.2d 1035). Defendant's remaining contentions, including his claim of ineffective assistance of counsel and challenge to the severity of the sentence imposed, have been considered and found to be lacking in merit.

  6. People v. Terwilliger

    255 A.D.2d 762 (N.Y. App. Div. 1998)   Cited 3 times

    Therefore, viewing the record in its totality and at the time of representation, we conclude that defendant was provided with meaningful representation since his attorney made cogent opening and closing statements, aggressively cross-examined the People's witnesses, raised appropriate objections and called several defense witnesses ( see, People v. McClain, 250 A.D.2d 871, 873; People v. Hill, 225 A.D.2d 902, 903, lv denied 88 N.Y.2d 1021). Lastly, we perceive no error in County Court's denial of defendant's CPL 440.10 motion without a hearing ( see, People v. Grasso, 237 A.D.2d 741, 743, lv denied 89 N.Y.2d 1035; People v. Davenport, 233 A.D.2d 771, 773, lv denied 89 N.Y.2d 1091), Mercure, J. P., Peters, Spain and Graffeo, JJ., concur.