PEOPLE v. SOMMERVILLE (2018)

MEMORANDUM AND ORDER

Defendant appeals from a judgment convicting him, upon a jury verdict, of assault in the second degree (Penal Law § 120.05 [2] ) and criminal possession of a weapon in the second degree (§ 265.03[3] ).  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 [2007] ), we conclude that the verdict is not against the weight of the evidence with respect to defendant's identity as the perpetrator (see People v. Henley, 145 A.D.3d 1578, 1579, 45 N.Y.S.3d 739 [4th Dept. 2016], lv denied 29 N.Y.3d 998, 57 N.Y.S.3d 719, 80 N.E.3d 412 [2017], reconsideration denied 29 N.Y.3d 1080, 64 N.Y.S.3d 170, 86 N.E.3d 257 [2017]; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).  The victim testified that he was well acquainted with defendant, and he identified defendant as the person who shot him.  Moreover, defendant demonstrated his consciousness of guilt by attempting to bribe the victim into not testifying.  The jury reasonably found defendant's exculpatory testimony incredible and rejected it (see People v. Nunez, 147 A.D.3d 423, 423, 45 N.Y.S.3d 794 [1st Dept. 2017], lv denied 29 N.Y.3d 951, 54 N.Y.S.3d 381, 76 N.E.3d 1084 [2017] ) and, notwithstanding minor inconsistencies in the testimony of the People's witnesses, “there is no basis for disturbing the jury's determinations concerning credibility” (People v. Sykes, 47 A.D.3d 501, 502, 850 N.Y.S.2d 72 [1st Dept. 2008], lv denied 10 N.Y.3d 817, 857 N.Y.S.2d 50, 886 N.E.2d 815 [2008]; see People v. McCallie, 37 A.D.3d 1129, 1130, 829 N.Y.S.2d 355 [4th Dept. 2007], lv denied 8 N.Y.3d 987, 838 N.Y.S.2d 491, 869 N.E.2d 667 [2007] ).

Contrary to defendant's contention, County Court responded meaningfully to a jury note requesting a readback of testimony from the victim and the paramour of defendant's brother regarding the bribery attempt (see generally CPL 310.30;  People v. O'Rama, 78 N.Y.2d 270, 276, 574 N.Y.S.2d 159, 579 N.E.2d 189 [1991] ), and it did not abuse its discretion in declining to read back a portion of the paramour's cross-examination that was not directly responsive to the jury's request.  Although a meaningful response to a request for a readback of testimony “is presumed to include cross-examination which impeaches the testimony to be read back” (People v. Grant, 127 A.D.3d 990, 991, 6 N.Y.S.3d 648 [2d Dept. 2015], lv denied 26 N.Y.3d 968, 18 N.Y.S.3d 604, 40 N.E.3d 582 [2015] [internal quotation marks omitted];  see People v. Berger, 188 A.D.2d 1073, 1074, 592 N.Y.S.2d 173 [4th Dept. 1992], lv denied 81 N.Y.2d 881, 597 N.Y.S.2d 942, 613 N.E.2d 974 [1993] ), the portion of the paramour's cross-examination at issue here did not in any way impeach her direct testimony about the bribery attempt.  Thus, it cannot be said that the court abused its “significant discretion in determining the proper scope and nature of the response” to the jury's note (People v. Taylor, 26 N.Y.3d 217, 224, 22 N.Y.S.3d 140, 43 N.E.3d 350 [2015];  see People v. Jones, 297 A.D.2d 256, 257, 746 N.Y.S.2d 596 [1st Dept. 2002], lv denied 98 N.Y.2d 769, 752 N.Y.S.2d 9, 781 N.E.2d 921 [2002];  cf. People v. Morris, 147 A.D.3d 873, 874, 46 N.Y.S.3d 667 [2d Dept. 2017] ).

Defendant's remaining contention is unpreserved for our review, and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

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

Memorandum: