PEOPLE v. TOLEDO (2000)

 Defendant appeals from a judgment convicting him of attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1] ), assault in the first degree (Penal Law § 120.10), assault in the second degree (Penal Law § 120.05[2] ), burglary in the first degree (Penal Law § 140.30[2] ) (two counts), and criminal possession of a weapon in the second degree (Penal Law § 265.03).   There is no merit to the contentions of defendant that the People failed to disprove his alibi defense and that the verdict is not supported by legally sufficient evidence and is contrary to the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The testimony of prosecution witnesses was not incredible as a matter of law, and there is no basis in this record to disturb the jury's resolution of credibility issues (see, People v. Early, 261 A.D.2d 967, 689 N.Y.S.2d 907;  People v. Boyd, 254 A.D.2d 740, 679 N.Y.S.2d 768, lv. denied 92 N.Y.2d 1047, 685 N.Y.S.2d 425, 708 N.E.2d 182).   There also is no merit to the contention of defendant that prosecutorial misconduct deprived him of a fair trial.   The prosecutor's references to the alias “Colombia Dave” did not exceed the scope of Supreme Court's restriction that such references pertain to identification testimony by witnesses.   Several witnesses knew defendant only by that name, and thus those references were relevant to the identification of defendant (see, People v. Vargas, 161 A.D.2d 822, 556 N.Y.S.2d 145).

 We reject defendant's contentions that the court erred in refusing to conduct a Wade hearing with respect to the in-court identification of defendant by the victim and in admitting that evidence.   The witness did not identify defendant in any prior proceeding, and thus there was no need for a Wade hearing (see, People v. McGee, 171 A.D.2d 1081, 1082, 569 N.Y.S.2d 527, lv. denied 78 N.Y.2d 924, 573 N.Y.S.2d 476, 577 N.E.2d 1068;  cf., People v. White, 73 N.Y.2d 468, 473-475, 541 N.Y.S.2d 749, 539 N.E.2d 577, cert. denied 493 U.S. 859, 110 S.Ct. 170, 107 L.Ed.2d 127).

 The court did not abuse its discretion in denying defendant access to the psychiatric records of two prosecution witnesses.   Confidential psychiatric records should be disclosed “only when their confidentiality is significantly outweighed by the interests of justice” (People v. Brooks, 199 A.D.2d 275, 604 N.Y.S.2d 219, lv. denied 82 N.Y.2d 922, 610 N.Y.S.2d 174, 632 N.E.2d 484;  see also, People v. Serrando, 184 A.D.2d 1094, 1094-1095, 583 N.Y.S.2d 245, lv. denied 80 N.Y.2d 837, 587 N.Y.S.2d 922, 600 N.E.2d 649;  People v. Arnold, 177 A.D.2d 633, 634, 576 N.Y.S.2d 339, lv. denied 79 N.Y.2d 853, 580 N.Y.S.2d 724, 588 N.E.2d 759).   Defendant had the opportunity to cross-examine the witnesses regarding their psychiatric and sexual histories, suicidal episodes and interpersonal conflicts.   Further, the court examined the records in camera and determined that those records failed to suggest that either witness “suffered at the relevant time periods from any impairment of perception or memory, or any psychotic delusions” (People v. Serrando, supra, at 1094-1095, 583 N.Y.S.2d 245).   Under the circumstances, defendant failed to establish that his need for the records outweighed the need to preserve the confidentiality of those records.

Judgment unanimously affirmed.

MEMORANDUM: