PEOPLE v. APPLETON (2009)

Defendant appeals from a judgment convicting him following a jury trial of, inter alia, reckless endangerment in the first degree (Penal Law § 120.25) and assault in the second degree (§ 120.05[2] ).   Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction of reckless endangerment and assault (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict with respect to those counts is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Defendant also failed to preserve for our review his contentions that he was denied a fair trial by the improper bolstering of the victim's identification (see People v. Simms, 244 A.D.2d 920, 665 N.Y.S.2d 185, lv. denied 91 N.Y.2d 897, 669 N.Y.S.2d 12, 691 N.E.2d 1038), that Supreme Court erred in admitting in evidence photographs of the victim's vehicle (see People v. Craven, 48 A.D.3d 1183, 1184-1185, 851 N.Y.S.2d 318, lv. denied 10 N.Y.3d 861, 860 N.Y.S.2d 487, 890 N.E.2d 250), and that the court further erred in permitting the jurors to take notes without proper instructions (see People v. Green, 35 A.D.3d 1197, 826 N.Y.S.2d 921, lv. denied 8 N.Y.3d 922, 834 N.Y.S.2d 513, 866 N.E.2d 459).   We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

The court properly denied defendant's motion to set aside the verdict pursuant to CPL 330.30(3).   The newly discovered evidence proffered in support of such a motion must be “of such nature that a different verdict probably would occur and, further, such [evidence] must not be cumulative or merely impeaching or contradicting of the trial evidence ․ Here, the proffered evidence does not create the probability of a different result if a new trial were granted and clearly constitutes evidence contradictory to certain of the trial evidence, thus tending to impeach the testimony of a trial witness” (People v. Hayes, 295 A.D.2d 751, 752, 744 N.Y.S.2d 530, lv. denied 98 N.Y.2d 730, 749 N.Y.S.2d 480, 779 N.E.2d 191).   Finally, we reject the contentions of defendant that he was denied effective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400), and that he was denied a fair trial by the cumulative effect of the alleged errors raised by defendant on appeal (see People v. McKnight, 55 A.D.3d 1315, 1317, 864 N.Y.S.2d 224).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: