Opinion
1999-10860
Submitted October 25, 2002.
November 12, 2002.
Appeal by the defendant from a judgment of the County Court, Westchester County (Zambelli, J.), rendered October 26, 1999, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
Karen Bosshart, Mount Kisco, N.Y., for appellant.
Jeanine Pirro, District Attorney, White Plains, N.Y. (Laurie Sapakoff and Richard Longworth Hecht of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., SANDRA J. FEUERSTEIN, CORNELIUS J. O'BRIEN, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The County Court's Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371) was a provident exercise of discretion. The defendant's three prior felony convictions for robbery and weapon possession offenses demonstrated his willingness to place his interests above those of society (see People v. Greer, 42 N.Y.2d 170, 176; People v. Peterson, 262 A.D.2d 502, 503). Neither their similarity to the instant charges (see People v. Pavao, 59 N.Y.2d 282, 283; People v. Sorge, 301 N.Y. 198, 200; People v. Moss, 282 A.D.2d 475; People v. Knight, 282 A.D.2d 760, 761; People v. Waltower, 270 A.D.2d 435), nor their alleged remoteness (see People v. Peterson, 262 A.D.2d 502, 503; People v. Ramsey, 220 A.D.2d 697), mandated their preclusion.
The County Court also providently exercised its discretion in denying the defendant's request for an adjournment to retain new counsel almost a year after the indictment was filed and in the midst of jury selection (see People v. Arroyave, 49 N.Y.2d 264, 271; People v. Carver, 184 A.D.2d 777, 778; People v. Gloster, 175 A.D.2d 258, 259; People v. Williams, 167 A.D.2d 491, 492).
Although the defense counsel repeatedly objected to the adjournments granted to the People to secure the presence of four civilian witnesses, he raised only conclusory grounds for the objections and failed to raise the argument he now raises on appeal, that the adjournments caused the sole male black juror to be excused. As such, the defendant's claims in this regard are unpreserved for appellate review (see CPL 470.05; see generally Matter of Eugene S., 200 A.D.2d 574, 575; People v. Ramsey, 220 A.D.2d 697) . In any event, since the People demonstrated their efforts to secure the presence of the civilian witnesses, their lack of neglect in failing to secure the presence of those witnesses, and the likelihood that the two primary witnesses would soon be found (see People v. Foy, 32 N.Y.2d 473, 476), the County Court providently exercised its discretion in granting the adjournments (see People v. Singleton, 41 N.Y.2d 402, 405; People v. Venable, 154 A.D.2d 722, 723; People v. Hernandez, 146 A.D.2d 646, 647; People v. Price, 144 A.D.2d 854, 856).
Likewise, the County Court correctly denied the defendant's untimely request, after both parties had rested, for a missing witness charge (see People v. Bowman, 270 A.D.2d 355, 356; People v. France, 265 A.D.2d 424; People v. Asphill, 208 A.D.2d 550, 551; People v. Woodford, 200 A.D.2d 644; People v. Catoe, 181 A.D.2d 905) . The defendant failed to establish that the two witnesses the People did not call would have testified favorably to them (see People v. Gonzalez, 68 N.Y.2d 424, 427; see also People v. Vasquez, 76 N.Y.2d 722; People v. Brunson, 270 A.D.2d 133, 134; People v. Miles, 161 A.D.2d 805), or that they were available, under the People's control, or would offer non-cumulative testimony (see People v. Gonzalez, supra at 428; People v. Odom, 278 A.D.2d 344; People v. Porter, 268 A.D.2d 538).
Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Even assuming that the sole eyewitness to the fatal shooting was an accomplice, his testimony was sufficiently corroborated by the forensic, blood, medical, and ballistic evidence (see People v. Breland, 83 N.Y.2d 286, 292-293). The inconsistencies in his testimony and his criminal history were insufficient to render his testimony incredible as a matter of law, and merely raised credibility issues (see People v. Hines, 218 A.D.2d 709; People v. Stackhouse, 201 A.D.2d 686, 687; People v. Taylor, 177 A.D.2d 727, 728; see generally People v. Jackson, 65 N.Y.2d 265, 270). Resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the trier of fact, which saw and heard the witnesses (see People v. Gaimari, 176 N.Y. 84). Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see People v. Garafolo, 44 A.D.2d 86). Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15).
The defendant's remaining contentions are without merit.
SANTUCCI, J.P., FEUERSTEIN, O'BRIEN and SCHMIDT, JJ., concur.