Opinion
2013-07278, Ind. No. 11-01255.
05-04-2016
The PEOPLE, etc., respondent, v. English THOMAS, appellant.
Gail Gray, New York, NY, for appellant. James A. McCarty, Acting District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco, Laurie G. Sapakoff, and Steven A. Bender of counsel), for respondent.
Gail Gray, New York, NY, for appellant.
James A. McCarty, Acting District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco, Laurie G. Sapakoff, and Steven A. Bender of counsel), for respondent.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, and JOSEPH J. MALTESE, JJ.
Opinion Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Zambelli, J.), rendered June 3, 2013, convicting him of murder in the second degree, assault in the first degree, burglary in the first degree, and tampering with physical evidence, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant failed to preserve for appellate review his contention that the verdict on his convictions of murder in the second degree, assault in the first degree, and burglary in the first degree was based on legally insufficient evidence because the sole source of the People's proof of guilt was a witness whose testimony was incredible as a matter of law (see CPL 470.05 [2 ]; People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ; People v. Crawford, 38 A.D.3d 680, 681, 832 N.Y.S.2d 254 ). In any event, the defendant's contention is without merit. Rather, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of these crimes beyond a reasonable doubt, as there existed a “ ‘valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial’ ” (People v. Cahill, 2 N.Y.3d 14, 57, 777 N.Y.S.2d 332, 809 N.E.2d 561, quoting People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt as to these crimes was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ). This was not a case in which all of the evidence of guilt came from a single prosecution witness who gave irreconcilable testimony pointing both to guilt and innocence, leaving the jury without basis, other than impermissible speculation, for its determination of either (see People v. Hampton, 21 N.Y.3d 277, 288, 970 N.Y.S.2d 716, 992 N.E.2d 1059 ; People v. Delamota, 18 N.Y.3d 107, 114, 936 N.Y.S.2d 614, 960 N.E.2d 383 ; People v. Calabria, 3 N.Y.3d 80, 82, 783 N.Y.S.2d 321, 816 N.E.2d 1257 ).
The Supreme Court did not improvidently exercise its discretion in permitting the defendant's girlfriend at the time of the crimes in question, who did not witness them, to testify that, in her opinion, he was the individual depicted in certain photographs derived from a surveillance video, as there was some basis for concluding that she was more likely than the jury to correctly determine whether the defendant was depicted in the photographs (see People v. Montanez, 135 A.D.3d 528, 25 N.Y.S.3d 18 ; People v. Watson, 121 A.D.3d 921, 922, 993 N.Y.S.2d 384 ; People v. Alleyne, 114 A.D.3d 804, 979 N.Y.S.2d 845 ; People v. Sanchez, 95 A.D.3d 241, 249–250, 941 N.Y.S.2d 599, affd. 21 N.Y.3d 216, 969 N.Y.S.2d 840, 991 N.E.2d 698 ; People v. Ruiz, 7 A.D.3d 737, 777 N.Y.S.2d 193 ; People v. Russell, 165 A.D.2d 327, 333, 567 N.Y.S.2d 548, affd. 79 N.Y.2d 1024, 584 N.Y.S.2d 428, 594 N.E.2d 922 ).
The defendant's contention that the Supreme Court's response to a jury note regarding the count of burglary in the first degree had the effect of directing a verdict of guilt on that count is unpreserved for appellate review (see CPL 470.05[2] ; People
v. Hoke, 62 N.Y.2d 1022, 1023–1024, 479 N.Y.S.2d 495, 468 N.E.2d 677 ; People v. Lee, 129 A.D.3d 1295, 1299, 13 N.Y.S.3d 581 ; People v. Lugo, 81 A.D.3d 532, 533, 916 N.Y.S.2d 596 ). In any event, the court's response was appropriate, and the jury is presumed to have followed the court's instructions that it was the exclusive arbiter of the facts (see People v. Arroyo, 128 A.D.3d 843, 844, 9 N.Y.S.3d 137 ).