PEOPLE v. WIENER

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

The PEOPLE of the State of New York, Respondent, v. David WIENER, Defendant-Appellant.

Decided: April 18, 2000

WILLIAMS J.P., ELLERIN, LERNER, ANDRIAS and FRIEDMAN, JJ. Susan Gliner, for Respondent. Erica D. Busch, for Defendant-Appellant.

Judgment, Supreme Court, New York County (James Leff, J.), rendered January 2, 1996, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him to a term of 2 1/2 12 to 7 1/2 12 years, unanimously affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   There is no basis to disturb the jury's determinations concerning credibility.   There was ample evidence of defendant's guilt of assault under a depraved indifference theory (Penal Law § 120.10 [3] ).   The evidence permitted a reasonable inference that when defendant struck the victim he did so with knowledge of the fact that she was sitting precariously on the ledge of an airshaft.

 The court properly exercised its discretion in denying defendant's application to preclude the People from calling alibi rebuttal witnesses, made on the ground that the People's alibi rebuttal notice was untimely (see, CPL 250.20[2], [3], [4] ).   Defendant did not avail himself of his statutory right to an adjournment, and his claim of incurable prejudice is not established.   We also note that the circumstances of the delay in providing notice were not unreasonable.

MEMORANDUM DECISION.