PEOPLE v. CABRERA

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Osualdo CABRERA, etc., Defendant-Appellant.

Decided: March 20, 2007

MAZZARELLI, J.P., FRIEDMAN, BUCKLEY, CATTERSON, MALONE, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Daniel A. Warshawsky of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Jessica Slutsky of counsel), for respondent.

Judgment, Supreme Court, New York County (Renee A. White, J.), rendered September 2, 2003, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him to a term of 20 years, unanimously affirmed.

 Defendant's challenge to the sufficiency of the evidence is unpreserved and we decline to review it in the interest of justice.   Were we to review this claim, we would find that the verdict was based on legally sufficient evidence.   We further find that the verdict was not against the weight of the evidence.   There is no basis for disturbing the jury's determinations concerning credibility (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).   Defendant's conduct, including the facts that he stabbed the victim numerous times after disarming her, and continued to injure her while she lay semi-conscious on the floor, supported the conclusion that he intended to cause serious physical injury (see People v. Getch, 50 N.Y.2d 456, 465, 429 N.Y.S.2d 579, 407 N.E.2d 425 [1980];  People v. Davis, 300 A.D.2d 69, 751 N.Y.S.2d 193 [2002], lv. denied 99 N.Y.2d 627, 760 N.Y.S.2d 108, 790 N.E.2d 282 [2003] ).

 The court properly exercised its discretion in permitting the People to call the victim on rebuttal after defendant had testified and both sides had rested (see CPL 260.30[7];  People v. Reaves, 30 A.D.2d 828, 292 N.Y.S.2d 296 [1968], affd. 26 N.Y.2d 921, 310 N.Y.S.2d 104, 258 N.E.2d 401 [1970] ).   The victim, defendant's wife, had been scheduled to testify during the People's case but became unavailable through no fault of the People and had to be brought to court on a material witness order.   To the extent that defendant is raising a constitutional claim regarding the fact that he made his decision to testify at a time when the People had rested without calling the victim, such claim is unpreserved and we decline to review it in the interest of justice.   Were we to review this claim, we would find it to be without merit.  “The trial judge must meet situations as they arise and to do this must have broad power to cope with the complexities and contingencies inherent in the adversary process.”  (Geders v. United States, 425 U.S. 80, 86, 96 S.Ct. 1330, 47 L.Ed.2d 592 [1976];  compare Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 [1972] ).

 The court's Sandoval ruling permitting the prosecutor to impeach defendant with two acts of prior violence against the victim balanced the appropriate factors and was a proper exercise of discretion (see People v. Hayes, 97 N.Y.2d 203, 738 N.Y.S.2d 663, 764 N.E.2d 963 [2002] ).   There was a good faith basis for the prosecutor's questions.   In any event, defendant was not prejudiced since he denied the prior acts, and the prosecutor was bound by his answers.   The court properly instructed the jury that questions by themselves are not evidence, and defendant's argument that the court should have provided additional instructions is unpreserved and without merit.

We perceive no basis for reducing the sentence.